Moore v. Galveston Electric Co.

*432 McMEANS, Associate Justice. The plaintiff, Albert Moore, sued the defendant, Galveston Electric Company, for personal injuries sustained by him. Plaintiff pleaded, in substance, that defendant operated a street railway on Market and other streets in the city of Galveston, and at the time of the injuries complained of it was repairing its roadbed, track, etc., at and near the crossing of Thirtieth and Market Streets, where it negligently left exposed one or more large spikes partially driven into a tie, and projecting several inches above the street; that plaintiff was going south on Thirtieth Street when he stumbled against a spike at or near the middle of a tie, and was thereby tripped and thrown violently to the ground, thereby causing his injuries; that the spikes were at or near the sidewalk line where many people come and go and were dangerous obstructions, etc. Defendant answered pleading several defenses which need not be set out. A trial resulted in a verdict and judgment for defendant, from which plaintiff has prosecuted this appeal. .While the plaintiff testified that the spikes were left in the sidewalk line at the crossing of Thirtieth and Market Streets, another witness testified that plaintiff pointed out the spikes, and the place where he fell, to him, and that this place was on Market Street some five or six yards east of the crossing. Another witness testified that plaintiff told him that the spikes and the place where he fell was thirty or forty feet east of the crossing. Upon the issue of variance between the pleadings of plaintiff and the proof as to the location of the spikes, the defendant requested, and the court gave to the jury, the following special charge: “You are instructed if you believe from the evidence that the plaintiff was walking upon defendant’s track between Twenty-Ninth and Thirtieth Streets in the city of Galveston, and some fifteen to thirty or forty feet before reaching Thirtieth Street he tripped or stumbled upon a spike or spikes'in one of the cross-ties in defendant’s track and thus fell and was injured, then the plaintiff would not be entitled to recover, and you will find your verdict in favor of defendant.” The giving of the above charge is complained of by appellant by his first assignment of error. Plaintiff alleged in his petition that the spikes were partially driven in, and left protruding above, a tie at or near the sidewalk line of Thirtieth Street where it intersected Market Street. The negligence charged against defendant was that the spikes, left where they were by defendant, constituted a dangerous obstruction in a street “where many people come and go.” We think that whether the proof showed that the spikes were in the line of the sidewalk as plaintiff testified they were, or whether they were near the sidewalk line as the other witnesses testified, the substance of the issue was proved, and that the giving of the charge was error. Pariś Transit Co. v. Alexander, 90 S. W., 1119; Hicks v. Galveston, H. & S. A. Ry., 96 Texas, 355; Texas & N. O. Ry. v. Scarbrough, 104 S. W., 413; Missouri, K. & T. Ry. v. Crum, 35 Texas Civ. App., 607, 81 S. *433 W., 74; Houston, E. & W. T. Ry. v. Ollis, 37 Texas Civ. App., 231, 83 S. W., 850; Gulf, C. & S. F. Ry. v. Johnson, 83 Texas, 634. The assignment is sustained. Appellant has presented several other assignments of error upon which he seeks a reversal of the judgment of the lower court, all of Avhich have been examined by us, and we are of the opinion that there are no reversible errors pointed out in any of them. For the reasons indicated the judgment of the court below is reversed and the cause ■ remanded. Reversed and remanded.