Texas Electric Ry. v. Stewart

Tex.) ELECTRIC RY. v. STEWART (317S.W.) certify canse, there- 5. in said the orders made <&wkey;347(3) Carriers with trans- —-Servant said-court, portation officially TRACK the seal of WHILE CROSSING under KILLED NOT GUILTY OF papers NEGLIGENCE original CONTRIBUTORY same, with transmit AS OF LAW. MATTER county cause, clerk court employé In an action for the death of an county, of will be rendered. Collin here by of defendant killed defendant’s interurban crossing car while office, from the ticket track gone car, where he had for the wait although transportation, going to a had and preparatory platform opposite side, on the boarding approaching car, an on a dark RY.

TEXAS ELECTRIC v. STEWART et al. stormy night, evidence not to show held contributory negligence (No. 8299.) decedent a law. as matter of (Court Appeals of Civil of Texas. Dallas. Dec. Rehearing, On 1919. Motion for 6. <&wkey;318(2) Cаrriers sustaining —Evidence 17, 1920.) Jan. GANG- FINDING OF NEGLIGENCE LEAVING IN ON PLATFORM WHICH CAUSED THE PLANK <&wkey;>318(8) sustained Carriers 1. —Evidence PASSENGER ATTEMPTING TO BOARD OF FALL FINDING OF ACTION FOR NEGLIGENCE IN CAR. DEATH OF PASSENGER IN ATTEMPT- STRUCK passenger by a defend- Where was struck ING TO BOARD CAE. crossing interurban car killed while ant’s employé of rail- Where the an interurban op- platform from the ticket posite a having company, transportation, after road leaving ‍​‌​‌‌‌​‌​​​​​​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‍stumbling by track side of the defendant’s ticket where he finding gangplank lying a a on the guilty gone crossing car, to wait for the when the the negligence in leav- defendant platform a track to approaching car, to board justi- position ing in such a held by it, evidence that was killed by the evidence. fied running hour, an car miles stormy night, on a dark the motor- when <&wkey;219~-Refusal word define 7. Trial anticipated might man might some one for in action “control” in instruction crossing car, passenger hoard the be track to erroneous. signal only, was to held sus- passenger for the death of In an action . finding proximately tain a caus- by car while interurban defendant’s struck employe’s death. ap- car, crossing peared and it to board the the track high passed aat the car the station &wkey;>287(l) statu- Carriers 2. —Absence speed, refuse to de- was not error to rate of tory OF REGULATION SPEED INTERURBAN OF opera- applied “control” as the word fine tion of IMMATERIAL IN DEATH CAE HELD ACTION FOR employés. by the car defendant’s OF PASSENGER. employé, trans- Where defendant’s <&wkey;194(18) action 8. Trial —Instruction portation, in- killed of defendant’s REFUSED PASSENGER PROPERLY OF FOR DEATH crossing to board terurban cars while the track OF EVIDENCE. AS ON WEIGHT same, the absence statute ordinance passenger struck for death In' an action defendant’s cars.while crossing moving rapidly while opеra- passing immaterial, the station it, defend an 'instruction as track to board owing duty using ordi- tives of nary authority run its ant’s injuring persons care to discover avoid weight refused, being properly as held . expected be at the station. evidence 3. car did ing gerous car at sumed defendant’s that defendant’s Carriers 4. where no submitted. tracks to board stances TRIAL COURT AS proaching SPECIAL ISSUE. WHERE JURY Appeal interurban Where defendant’s special Whether it, passengers buying rate of high not have it appeal issue as servants carrier <&wkey;320(10) Negligence STATION car while speed, error FOUND the station at a that the trial court operatives cause of under TO speed approaching &wkey;>930(3) held, QUESTION NEGLIGENCE employé found on A control, negligent negligent crossing the track to tickets had to crоss that such NEGLIGENT — under the circum- employé’s high FOR JURY. special -having — will Findings found that PRESUMED approach- killed ACT ON death, issue been dan- ‍​‌​‌‌‌​‌​​​​​​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‍pre- 9. Carriers 10. struck track to 11. Death band ant, having should fact ther and the tion FUSED TO AGES. DEATH to such In Death $2,400 death of properly BE it was not consider a wife’s FOR look board her AS MISLEADING. CONSIDERED MAN OF mother held action for the defendant’s <&wkey;91 DEATH remarriage, not error to <&wkey;99(l) remarriage, <&wkey;348(3)~Instruction refused it, strong action for the listen admitted. 23 YEARS OLD NOT EXCESSIVE. an instruction widow and OF — Remarriage PASSENGER not healthy mitigation IN for — $4,800 introduced being MITIGATION death of inadmissible excessive charge'that man death of her $2,400 misleading. toas damages PROPERLY crossing damages damages widow decedent’s to the fa- passenger years OF evidence defend- DAM- hus- ac- RE- old. Digests topic Key-Numbered

<§zsjFor and Indexes cases see same in all KEY-NUMBER (Tex. 217 SOUTHWESTERN REPORTER" 1082 County; Court, Appeal appellant’s office, Dallas went from District ticket and Judgе. waiting passage agent Muse, E. B. there for take intended to he by on, appellant’s- he was notified others and Action Julia Stewart coming. p. that the m. car was 7:43 wrong- for the Texas Electric Upon receiving this notice Stewart started Judgment for ful death H. Stewart. E. from to- to- to the office toward the ticket station appeals. plaintiffs, Affirmed. and defendant approaching car, and, board the in order Callaway, Templeton, Beall, station, compelled Williams reada & he was Dallas, appellant. railway for cross the At track. this there time Dallas, Spence, Smithdeal, station, were with Haven for no was at and it & difficulty obstruction on the ground platform adjacent appellant’s or seen, track all. could at As the deceased TALBOT, appellees, The J. Mrs. Julia proceeded station, in the direction of the and surviving wife, Stewart, as R.W. Stewart railway track, as crossipg he was Lonnie Stewart, surviving Beatrice and and as the father Gilmoui, accompanying him, who was and mother, respectively, appellant sued the crossing who was also the act of 7, 1918, damages on June recover suffered taking purpose track with him for Stewart, reason of the death H. E. (cid:127)passage car, signaled on said motorman negli- allege was caused stop operating, the cai\ The motorman gence February, 1918, appellant day on 'of 27th car, but, the car failed to Lisbon, at station on reasonably deducible from pellant’s road, county, line of Dallas drove the rate same stаtion at the appellee The married Mrs. Julia Stewart of about he or 40 an true that 35 miles hour. It is Charlie Carter and before the after death of Stewart place at said trial, and he was made when his car within 30 or was 35 feet of party pro forma the suit. The material time, deceased he saw him for the and first appellees facts their which the base put emergency brake, then on the and recover, peti- set forth in "the when the car struck it run deceased was supported by tion and which are ning, guessed, he about an 20 miles 25 may , follows: be stated as hour; place but at another he said he The R. Stewart Beatrice and running ap 40 miles hour as 45 he mother, father re were the and Stewart proached station, only and reduced Stewart, spectively, of H. E. and on the 27th it, “just reaching pos little, before day appellee February, 1918, E. and husband and H. Stewart sibly hour,” 5 or 6 miles and when were Julia Stewart he reached the he station “must wife. On the H. E. said date Stewart went making 35 or miles an He appellant’s hour.” Lisbon, station at knew, flag station, further county, Tex., testified a purpose if he was Dallas for running taking passage appel up miles an on one of 30 or hour to within lant’s station 30 feet of interurban cars at said for Oak took the car less Cliff, county. in said The a than a after he saw second him had Lisbon, very house at and its struck him. The cold; schedule was dark and reaching waiting cars showed that Lisbon room station where passengers p. compelled m., ap at 7:43 Oak the the bound Cliff and to board city Dallas, flagged pellant’s lighted, very stopped when cars there and was taking disagreeable. passengers. appel for the cold The office of - appellant’s agent agent opposite A. E. Wilson lant’s on the side ticket rail station, way been, station, had at track when the from the where sold he passage accident, question occurred, persons intending five tickets to to take years. tickets, agent appellant’s Lisbon, provided The at furnished cars case, flags fire, kept lanterns, with a warm ticket and comfortable place agent pas and the ticket office or where tickets accommodation of sengers. especially customary agent’s passengers, were storehouse, sold It maintained sign months, following go the winter with agents Express operat house: “Interurban Ticket This was the ticket office. only question knew, Office.” car in ticket office at exer station., the tically prac known, track cise of persons care should have runs seeking passage north and south who were take passed opposite said ticket office there on the the station railway go p. and east side of its at Lisbon at m. track from the 7:43 to the ticket passengers provided by station on appellent place, west side which office there cars, protected must board its ticket remain until cold yards apart. approached station, station house were about 50 or 75 then railway It seems that the deceased was in track walk across the employ, transportation road, over its and and board desired to take. (cid:127) purchase Shortly discharged Appellant did not a ticket. after be received RY. Tes.) ELECTRIC v. STEWART (217 S.W.) boarding its opposite car towards station and side side from the sides of (cid:127)depot station house requiring passengers There ticket office. ticket the maintained (cid:127)of the towards tickets, buy re- in, cross and then the track to ticket office cars, not cross same The station or station house. north car the un- directly opposite, little board a the deceased desired to was having a There car ticket office. station Lisbon said west of the gangplank ing packages of without stopped control, appellant unload for der could be the end used coming plat passengers striking its onto were its cars appellant’s, form, injured, from for the station lying, deceased time the ticket office to (2) car; platform purpose boarding in freight of tracks said of between the railway having gangplank platform appellant’s a of station and the provided operating platform Lisbon; (3) car grayel the use for station at in said approaching boarding appellant’s passing a cars. passengers in and said speed. of in jury high answered, dangerous inches The wide and was about 35 This plat interrog- gravel Setting response long. appropriate in and 6 feet plat atories, operating appellant’s form inches above the the ends are servants 2% attempting deceased, cross in car failed The the have which struck the deceased form. approaching for car in track to the station said under control passing station, boarding fail- car to be trans and such of said negligence Cliff, foot ported struck his ure of either to Oak platform, against gangplank lying proximate de- servants and the cause against guilty death; (3) appellant him to fall or caused ceased’s threw car, negligence platform Lis- was struck in or of on its badly track, negligence gangplank, and so he cleared and that such car before bon injured proximate of he died was that as a result thereof also a cause of will thereafter. Other facts the deceased. The issue of whether few hours questions pellant’s agents of of the car werе disclosed the discussion 'guilty negligence proximat'ely causing the for our of decision. raised special injuries operat- appellant pleaded general The and death deceased demurrers, specially dangerous general denial, high of at a rate they passed employes; approached and the the the deceased was one of its daily, Lisbon, specifically that he resided at station was not submitted to rode they pur- However, questions stop not the or whether knew for signals pose receiving only upon appellant passengers of the servants of ‍​‌​‌‌‌​‌​​​​​​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‍the duly given; actually negligently fail- knew deceased struck deceased and, approaching, approach- the car in ed to ing said cаr under control disregard negli- safety, station, total of own and whether and such failure gently appellant’s railway went cause submitted, in front of said a few feet there- of were the death from, place and at such time and such Did in the affirmative. and both answered wholly impossible manner as to render it for justify such answers? We the evidence the car or to re- motorizan uncon- The reached the conclusion troverted evidence did. duce the thereof avoid appellant main- shows that him'; striking guilty hence he contrib- of depot gravel Lisbon a tained at utory negligence. The trial court refused to track, railway on the west side of located appel- instruct the lant’s to return a agent verdict place where its a railway tickets, office or and sold of 75 at this ticket favor, spe- and submitted the case east side located on the Upon cial issues. ánd officewere This track. judgment apart. yards was rendered in favor of In order secure a ticket judgment appellant appel- appealed. transportation point Prom this for over necessary go is, substance, to the it was The lant’s line road first contention ticket, purchase office, refusing and then walk erred in ticket court to direct northwesterly yards'in requested appellant, across direction return 75 the a verdict platform railway gravel appellant, track to for because the evidence was whol- lights ly main- negligence the ear. No were order to board insufficient to show actionablе provided pairt depot, any respect, (cid:127)on and no means' tained at this heating wholly it. At its said ticket for to establish the failed persons place sold to (cid:127)alleged where tickets were' If this is a state- it. correct cars, passage intending a fire respect on its to take ment with usually have,been kept, and it was a com- peremptorily and fortable arrival of inhabitants instructed to passengers appellant, to wait for for favor verdict in return a several hundred judgment There were must be re- district court .cars. neighbor- living charged,, amorlg in the immediate versed. The station, though a- alleged, distant grounds, hood of this fe>v and village maintaining yards guilty (1) hundred (Tex, REPORTER 217 SOUTHWESTERN rounding amounted to about the sum It least 40 pellant's cars, man of the conditions and tlie the сar in death to this court that we would not be authorized especially sons state and no ordinance in the town of Lisbon of Lisbon to agents if 500 feet from the tickets, his death a very who which the caused his death. ating servants custom was in regulating statute to withstanding see car cross the at track from the til about 5 or in about 2 or 3 of whether or not act of fice to the could contact with the when the car was according depot. electric ther showed ^[2] [1] So question him, five Lisbon, say had been which it a such coming headlight question; remain there until the depot, operated receipts killed. desiring dark. person intending guilty 5 would come within the when the car question years pass there was no evidence of determined crossing approached Prom lоng feet current could that it person the station fact that there was no statute in the a station as the evidence shows the station to his own track to headlight during 6 and 2 depot. car which struck the go employés occurred does 'from the ticket office 45 miles appellant’s servants'operating sandstorm feet of the deceased. on the station where the accident the prior These facts customary, On operated prior without the car was restricted to become these whether to the ticket office this it is of the car. The evidence speed one of feet heard for whether or not 1,000 each the track from the ticket the vision is negligence the or had depot. to the accident passengers sales clear depot Lisbon, 1,000 facts, 3 feet on There per hour, side of the at of the car would feet from the winter approaching, proximately propel it, at the time in dispute speed, approached railway track, with- jury depot running evident depot platform. from the record for a feet from at were known to track, if take circumstances which were 500 time were no raging the deceased did or did in the manner months, materially light each $200 motorman, not- passage period the motorman feet that came that a as fast which was negligence deceased cars at of and knew of referred his car given and was per side of the the caused the could- not be a of the ac- regardless depot, to within could not being ligence be in the question, upon ap- intended question or month. objects utory negligence tickets known motor- as the depot, night, affect of depot track 287. shine oper- light light four then state has several times ears sent per- sur fur- car, met buy the un- of- to, at at who and use failing care would use. 28 S. W. 520. Railway pany’s negligence lant’s ed Railway 83 S. W. and avoid which control company ordinary cident. The and whether rightfully upon such lating se, ing negligence may accident it” Neither separately in the way which the sidered no such such issue was not submitted to of whether ing gerous struck the station, appellant W. being propelled, dence would warrant such ordinary prudence port rounding on such ed on this [3] The taking request by, 1158; the station of danger deceased. places a to discover See, also, station at Lisbon was exercising struck the determination of the, “in connection with in such testimony, and, vigilance 677; and the circumstances Co. Co. prudence operatives the they Railway submission of the passage exercise injuring persons deceased, made predicated Watkins, car is appeal judgment rendered, approaching or not absence of approaching, v. v. such degree speed at which the station, Railway speed, speed expected did not was persons there be, apart the track regarded It Malone, Douthit, be evidenced of the case of McDonald v. servants were they operated therefor, and the circumstances sur and avoid being рropelled, would Lisbon at of actionable that the trial court found persons Co. is true the although under like circumstances opinion 88 of the car and that such being at which said car was cause of that such degree Supreme upon, and the person injured.” no v. caution as a Co. there for the operatives Tex. care held that “a railroad statutory the issue to be at the 102 208 W. 201. expect Shiflet, makes no difference cars, right, regardless as it»must respect, had said occasions findings, no statute Smith, are v. likewise cars could issues of contrib necessary evidently suggest issue in this case 20, saw injuring persons Tex. a care imposed S. West, it was a negligence per passing appel care high ,the finding trespassers guilty Court since the evi speed 29 W. this court negligénce the track 98 Tex. surrounding proper. 269, be operate regulation, of the find them considered when con negligence S. they 174 S. W. car and since based and dan as car that ordinary the com Railway discover presum regulat be 115 of the under pass* ‍​‌​‌‌‌​‌​​​​​​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‍must Rail such neg 232; run, sup 326, law flag up car re* or S. ; Co., ply, power 686 appellant, contrary, recognized pable negligence nounced The fact that the der stances mitting minds to differ as to drawn from miles it the evidence nation of the ley, ord, He the bearing upon court said that motorman crossed the nights passengers, the car, is peremptory gence case should have been return a verdict exercised dent conditions deceased, Tex.) ed that tory negligence tion of the a are- unable ed timony, were ticipate stated and however, ter ets or platform. character ered 600 stormy night, recovery. reasonably that the trial coming knew 15 Tex. Civ. depot. depot feet. as before “that it must be held is that nor nor either of question. he could not the within 2 or 3 feet of The next because an hour him from 35 to to avoid law, not, at the station of .that the deceased was and the evidence disclosed surrounding one easiest Railway peril that view of in our such care awas announce a he could operating appellant’s He He the issue from the ticket there is need not be railway instruction With this but 4, waited would To this view of it”; given when his car was 500 issue be wholly avoid agree. the two rule he was stated, knew, knew that рassenger 22 W. striking said, as a matter contention of the one of fact App. 308, the statement of question for the determina court erred opinion, motorman, in its S. and unless it undisputed Co. As whether the in Railroad Co. the other cases of fact striking issue track to board as shown no room as failed to The conditions running the car urged by appellee, contrary v. cases 40 miles an knowledge principle depot. taken from the ticket the conclusion directing it in less than him does not comprehend a matter of Lisbon, the 939, repeated. see exercised favor, Langham, whether vigilance contributory negli it was a dark especially material has guilty, of such a charac the 40 S. W. deceased was whatever to stated for the determi named. thеm 40 Am. St. the evidence when of law evidence show according How then railway track. already did all establish cul part, rule. was of injuring refusing its bought ofl law the he ran the ELECTRIC office, under until hour, he is It -is the feet from áppellant could 95 S. law, contribu cited own 35 v. not, and the barring circum answer operat On the clearly discov in his to be about Wag jury? Ives, rule, Rep. such such tick sub pru not, (217 !.W.) like rec and tes can un ap an an we 40 i nesses, namely: It is jury upon front of the door other hold with the contention of ing its station Lisbon. This sonable men was gravel platform juries to, ger such questions, found that these ter of law. found the station railway gangplank platform time track, evidence issues and platfornl that from 3 to inches above the ger about 3 feet wide and 6 feet gardless form, tained testified the ing ed determination is car was from them that track guilty as to whether sonable men must draw the ever state way company, track. The deceased within a few ends RT. “When It has been more than [6]The the depot gangplank. car he U. railway undisputed attempting insufficient stumble over it considered injured y. the deceased came negligence proximately in front of an the deceased beveled, issues hand, lying S. there, where the facts STEWART testimony, track was night, Co. a of how alighting door. 417, contributory and death them. We have complains ends would be given came 5 feet north of his feet about the effect may fairly house and the on track in on the v. 6 to 9 feet Railway the person of the matter parallel, there was inches of amply and so cоnstructed as one of law Laskowski, that on gangplank sustain the the there to lying used The The witness Lonnie state upon leaving it was platform, Sup. raise such issues. board one of from ground apprpaehing response platform gravel platform from the endeavors strike front of, and the near the center of the the after the accident was of the submission sufficient being no Co. The differ Ct. negligence,’ the are passenger depot, facts is such that rea- located north of the feel constrained injured the upon nearly so, gravel platform v. 683, feet is once held carefully gangplank 47 S. that the so that when he crossed approximately 2 west west rail of the assert depot of a rail gangplank of several wit Wagley, supra; same оr 3 feet from deceased. south, running caused the with- his head the long, wide, 36 L. lying to cross to raise foot on the the train, is not W. 59. appropriate door. rail of the as mat approach conclusion in board platform that, with with its jury. G-ilmour^ evidence examin between question Ed. not, passen against courts.” cars at passen all rea- in this on the of the On the lying, main 1085 plat The 485, The the the the re in It (Tex- REPORTER 217 SOUTHWESTERN effort as the possible may toward ed moving ear, reasonable cumstances right foot gangplank, form, the deceased was equilibrium upon the car track, would his negligence proximately prepared ple crossing testimony mere matter of dence to ly ble, evidence to testimony.” 188, n sufficient. negligence may deceasedwas caused tо fall lishment which bent by part plank his left car whether north on his head foot derstand and construe the cause of the were tial against west. When he ticket In inferable from negligence alleged, Its conceded facts. direct permits right right such inference must be a evidence for solution. against 146 S. W. 538. and reasonable really upon appellees was broken at the ankle. As we and the him, to retrace side would have fallen problems the wounds have been dangerous proximity it could he going side was toward to support light side of stepped side. practically shows he gravel platform, and whether he was struck deduction ,he approaching car, “In cleared shown, say the admission of circumstantial going contradict facts and circumstances from platform quite injuries gangplank, guilty positive injuries cleared north before he cleared the undisputed testimony of all the eyewitness conjecture, his depending gangplank lying that the reasonably went If, however, thereby have turned on his fall, shows it was. going them. the. evidence. This thereby possibly steps, it is was, supported by Negligence to show body. side of deduction from railway track, as the cut upon and it was not he received were which is was one of the words, evidence. track, west or northwest in. left straight positive caused the caused to lose his of its jury’s rapidly moving car, and was struck that if It is clear probable inflicted bevel facts, the facts and Negligence railway track, but must be his be inferred was a little side, Boone, it, when he and struck his .his hе had that he did struck his logical, and that such court, among body injured and his without evi- cannot be a him, approaching contact with not an un- track. end of the we are not verdict for circumstan True, and not right immediate upon in inference, 105 Tex. north of. inflicted injuries grounds stood as thereby with reference realiz- proved side of incum gotten princi proba on the shows direct estab gang plat- right act of fair side him foot The is cir- his un an the so by fs prudence same with such reasonable and appeared, or similar of the motorman time and court technical jury it is believedthat the in submitted. The word as used had no such think, facts and ing to lose Ms part reasonably point to a clinker as the obstacle that the passing upon foot lejo, 25; Railway obstruction on the In the last case cited the that in to raise the of balance” and he fell pellant tion. evidence ity the case of 212 W. was sufficient those that such cause of the fast say here, dence to raise the issue gangplank, platform. it was for the the established facts and to whether or not the deceased had ed time the track the deceased seemed to be Gilmour that to “Thus us, unlikely, fall special illustrative of the rule that circumspection S. the word “control” as used in issues hit be not misled 188, appellant’s requested 102 Tex. he cleared the track and was caused The court he significance charged issues, deceased, merely See, in stepping against an) attempting appellee’s track, by giving holding saw the deceаsed meaning testified, moving tends to show either that would 146 S. refusing place 635; circumstances, issues which the balance, At obstruction also, Bock railway company or no more to upon other accident question question Co. v. any rate, 73, or into struck his and as but W. in over the have done that a Railway car. As additional author gangplank. left foot v. Fellman asi sufficiency require committed no jury ground do not wish to force which the to 113 S. W. things, and the court did not err to board question as a 533; Railway required substance, Geron, give resulting to the which threw its use. sufficiency that it was the from all the preponderance said in was the jury against determine, to all caused to fall circumstances west struck, near said: Co. v. in instruction defin that the foot be plaintiff question, under the samе their jury.” the car at the to the end that to Dry Indeed, jury’s charge in submission ordinary inferred in stock word control rail onto that case circumstances Besides, the car. operate explanation against causing S. having Boone, Co. v. he was on determina answering Goods error, track, coming be under him testimony ordinary it occurs evidence evidence allowing evidence W. 471. claimed answer the last we to the Lonnie S. cross apply- duty care “out than Val info him Go., evi cite his ap we in struction. rate oí Tex.) depended, they the law did not charge authorized track he was particular charge for to look was inflicting injury upon the car proaching duty ate fusing only deceased, appellant’s track, pellant’s track, he failed tо do tributory negligence. appellant’s right, and it would connection, charge, to exercise and At least the thorized cumstances demanded be run with such thereof, properly track at the time and evidence structed the to run so at incurring liability The effect of that persons at speed operate statute or ordinance referred and at such rate the lives ticket First, because, [8] We think speed his presumption capable—that is, told Second, any at which appellant requested jurors trying attempting of said car look out and use the capable own its ears same with which at which toas the track. that danger rate agents operating misleading. and as a out this case and error to have in time and surrounding safety, persons gоing law for such statute charge law so, and in must create the belief in the minds the cars there was no and to ascertain whether or not station as construed and impose any for at that the that was it saw portion to cross the to exercise he would be respected by persons ap- car, further told that it was care speed tell the ordinary' care use the substance, the case was so it is run the station of ear; place going upon injuries to look and listen run But that ordinance of guided senses which he least fit, it of the was authorized to its cars true there was no the trial of said right persons. the latter clause addition desired, a result of the because the cir senses which so being not to jury his own framed was authorized rule going upon error сircumspection care to avoid weight inflicted question, track, two analyzed, station, etc., charge the rate of it was the it could do ELECTRIC .that since as to the propelled. requested (which been agents endanger act upon way court to reasons: said was au osition without thereto of con- and, safety, should pression in either of them which sustains the of the decisions of track, refus oper- tory upon care here con this ercise (217 S.W.) car. not for not in- the its his sense at port of its contention that if As might thereby ascertain whether or not there noticed, was and the deceased failed to looking injury tributory negligence guilty udice of his was going covery. matter of ing a look and at erroneous and marriage ter RY. one here in stoоd that them, but Ind. not err error consideration, which the The ror. The record reached we which thereto. charged this dence introduced aware of no case decided in this sider, they contention, ór which Stewart “Instruction No. ^[10] look refusing any arranged senses think, several Supreme Court of Indiana said: danger approaching danger appellee’s remarriage giving misled v; 241, negligence, upon committed law, consolidated Stone Co. v. ordinary admitted such need not STEWART rate, and exercise considered himself, was not to instruct the |ueh The effect of the Carter, if stated, listen before contributory negligence mitigation law, 66 N. E. idea of precise inadmissible for the authority death, giving court at the correct), he failed from it in allow the cases cited them, very likely, question erroneous conclusion in jury hearing ascertain whether or not there listening evidently offered, failure but give has been so often declared track at such track, widow of the fact of her that it be cited. We have state, care for by appellant, worded, but, car—to he was discloses failed conveyed charge 696, and to look out and use admitting proximately that if he indicates approaching is not he told the law them in going charge correcting and is well under- use going they special charge by appellant support so That request senses would be to discover was. appellee cited guilty the decedent should could not the charge, is effect, look ordinary his own would the court erred upon should not con damages assigned so guilty charge shown and the court that end that he place upon, passed assessing it. We are neglected approaching out and jury Morgan, of contribu- duty the fact of remarriage. which was. caused his Mrs. Julia as a mat- car before instructed failure to bar appellees, examined avoid in- court did appellees we have state recover. subject, any care of con- will be as the would, regalrd safety to ex- track, which under as er cross- prop- a re- 10S7 prej- as a sup- use evi ex- (Tex. REPORTER 217 SOUTHWESTERN rehearing given. damages in made in the ly damages, was no error There motion for a is entire- , this.” accurate. ‍​‌​‌‌‌​‌​​​​​​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‍No witness testified that “very cold,” motorman, weather was but the appellee Mrs. fоund that the [11] The Operating who was the car that the deceased damages Carter had sustained Julia Stewart with, came “It contact testified: $2,400 the death on account of in of her appellees sum of pretty accident, evening cold the Stewart, husband, E. H. disagreeable, blowing, wind and a sand Mrs. Beatrice W. R. Stewart However, admitting storm.” that it was not mother, respectively, Stewart, father and very ques- cold the of the accident in damages in a had sustained tion, materially that fact does not alter the Judgment death. account of his ease; like sum on was rendered in accordance ings, for, independently thereof, the evidence with these find require was of such a character as to charges that the amount appel- submission lant’s jury’s finding upоn issues judgment,as Mrs. Julia Stew liability justify of said to both 'depended art Garter R. and Mrs. Beatrice them. The excessive, grossly shows contributory negli- Stewart is bearing the issue of (cid:127) jury were the of gence result , part of the deceased is suffi- passion opinion, bias in favor of the and ciently stated and fails to appellant. prejudice There a matter of law. show such nothing in indicates Seeing changing' the record which no sufficient reason for jurors disposition-we tried case case, have made any improper in ar actuated riving motive rehearing motion for is overruled. damages the amount allow ed, prepared say and we are the facts estimated the jus damages were not sufficient to suffered tify respective amounts awarded.' et al. NEELY yеars age ENTERPRISE CO. v. deceased of 23 and a the time (No. 1007.) death, healthy strong, young his He had been raised on a farm. man. On Appeals (Court El Paso. of Texas. of Civil Texas, account of the drouth Northwest 15, 1920.) Jan. county father left Cottle inarch live. The April, 1917, and came Lisbon 1. <&wkey;>294 be substantial- —Must Contracts county deceased remained Cottle until De ly ACTION- THEREON. PERFORMED BEFORE cember, but, on account of the contin substantially A must at least contract drouth, farming, ued he abandoned came to agreement according performed to the terms county, accepted employment Dallas party of action can have before thereon. Company. with the Texas Electric He and. then his father’s his wife went to and moth — recovery <&wkey;319(l) 2. No Contracts er’s house at where lived. OF ALLEGA- PART PERFORMANCE ABSENCE IN practically earnings He contributed all of his MERUIT. QUANTUM TIONS UPON support wife, father, and moth plaintiff con- entire A recover cannot er,' living and his with his father and moth proving performance without al- tract perma Lisbon er at seems to legations authorizing recovery quan- upon a arrangement. undisputed nent Under the evi tum .meruit. dence, say we would be authorized to 3. Contracts excessive, <&wkey;280(2) judgment required the-verdict and are —-Contract NONDELEGABLE SUPERVISIGN OF PERSONAL carefully We have considered all of FARMING OPERATIONS. pellant’s assignments error, with, con- obligation imposing joint A contract to of cotton in reached that neither them dis- clusion gather farm, cultivate, crop closes reversible error. thorough necessarily and farmerlike manner judgment is affirmed. persons jointly contracting impliеd that the personally superin- supervise so do Rehearing. operations, On Motion was non- tend the delegable, recovery had under could Referring the condition of the weather where a third was hired to contract night deceased, Stewart, on the ed, was kill- superintend work, in and do the the absence opinion: “The our allegations quantum aof meruit. * * * very cold.” The correctness of this challenged mo- conclusion is Court, County; Error from District Ward rehearing, tion for a and the statement Gibbs, Judge. Chas. support there is no evidence to madei “undisputed it, Neely evidence” E. but that the shows Action another Enterprise Company. Judgment plain- contrary. conclude a further We tiffs, brings examination neither Re- error. defendant (cid:127) - conclusion attacked nor the statement versed and remanded. Digests igsnFor and Indexes topic eases same Key-Numbered see KEY-NUMBER in all

Case Details

Case Name: Texas Electric Ry. v. Stewart

Court Name: Court of Appeals of Texas

Date Published: Dec 20, 1919

Citation: 217 S.W. 1081

Docket Number: No. 8299.

Court Abbreviation: Tex. App.