Ferrell v. Beaumont Traction Co.

KING, J. This appeal is from a judgment in favor of appellee, based upon d verdict returned by the jury in obedience to a peremptory instruction from the court, who, by said instruction, held that as a matter of law the appellant, Leroy Ferrell, was guilty of contributory negligence. On the morning of the 15th day of May, 1915, said appellant, who was then a boy 15 years old, suffered yery painful injuries by being knocked from the running board of an automobile. He was one of a party of a Sunday school picnic crowd that was journeying to a point south of the city of Beaumont in what is known as hay wagons, going south on Park street, one of the principal streets in the city of Beaumont, one of the wagons preceding the other at a distance variously estimated at from 50 to 150 feet. Park street runs practically north and south, and is double-tracked, the east track being used by cars coming north into the city, and the west track being used by cars running south. These hay wagons had large flat beds about 8 feet in width, which were above and extended over the wheels of the wagons, and the beds of the two wagons were crowded with children sitting all around the edges thereof with their feet hanging off. The appellant Leroy Ferrell and others were sitting in the middle of the bed of the rear wagon. One of the defendant company’s tracks comes into Park street over Emmett street from the east, south of the place of the accident. When these wagons were thus proceeding down Park street south, with the rear wagon running along with its east wheels about the center of the defendant’s west track, a young man by the name of Richards, driving an automobile, overtook it and ran along slowly with it for some distance, the front wheels of his automobile running -along to the east of the back part of the rear wheel of the wagon, which placed his automobile over near the west rail of the east street car track. It was testified that while the wagon and the automobile were traveling in this position, Richards invited some of the boys, including the plaintiff Leroy Ferrell, to get aboard his automobile, and three of the boys, including appellant, proceeded to do so. The appellant got off of the rear of the wagon and ran around the rear of the automobile, and was on the running board on the left-hand side of the automobile, and was opening the door, when one of the defendant’s street cars, meeting the automobile, collided with it. Appellant assigns as error the action of the trial court in peremptorily instructing the jury to return a verdict for the defendant, thereby holding that the testimony showed as a matter of law that appellant was guilty of contributory negligence. Richards, who was driving the car, testified ■that he had gone down Pearl street to Austin street, and crossed over Austin onto Park street, and was going on down Park street, and overtook the picnic wagons about the middle of the distance between the two streets, and that he knew all the people on the wagons, and slowed up to about the same rate of speed the wagon was going, and the boys began to jump off and jump on the car, and two of them ran around back of the car, and that at that time the street car was at the corner of Park and Emmett, taking on and letting off passengers, and that he thought he had plenty of room to get through, but that after he started around, he saw he could not pick up speed enough to get by the wagon before the car got to him, and began to back up to get away,- when the rear wheel of the wagon hit his front hub eap, which threw him a little towards the track; that the motorman was looking back and hollering and laughing at the girls; that he was going just a fraction faster than the wagon when he first started to go around, but when the street car hit the car, the wagon was pulling out and .leaving him; that he was passing on the left-hand side of the wagon, which was going south; that he was going south, the street ear coming north; that it was customary to pass on the left-hand side; that there was a traffic regulation to this effect; that the wagon was going pretty straight down the street as he started by it, and that as he started by, the wagon cut into the east side of the street towards him; that at the time the street car struck the automobile, he could not have gotten closer to the wagon without colliding with the wagon; that the street car caught the end of his -bumper and pressed the side of his left front wheel, and caught onto his fender and dragged his car backwards; that it knocked the bumper off the ear, and bent the fender back, and hung onto the fender; that when the street car left Park and Emmett, it was picking up just at an ordinary gait, like it always ran; that they just threw it open and came on like it was going down the track, and got in about 10 feet of the automobile before -the motorman looked around and began to apply the brakes; that he was too near to stop; that the car was within about 6 or 10 feet from him before he noticed any change in the speed; that it was 11½ feet from the west curb of the street to the west rail of the west track; that the wagon *656 was straddling the west rail of the west track; that the track was 5 feet 2 inches from the outside rail to outside measured over all; that his car was about 68 or 70 inches wide over all, from the edge of one fender to the other; that he was going three or four miles an hour at the time; that it was about 24 feet from the west curb of the street to the west rail of the east track; that at the time he began to back his car, after deciding that he could not pass the wagon in safety, the street car was close onto half a block from him; that that was when he first discovered that he could not make it pass the wagon; that Ferrell had just got on the running board when the street car hit him; that the boy tried to get on his car just at the time he started to drop back. We have not given this witness’ testimony as to the negligence of the motorman running the street car. The evidence of all the witnesses testifying shows that the motorman was not keeping a lookout, but had partly turned around, and was looking at the front wagon, which had just passed. Appellant Leroy Ferrell’s testimony was as follows: “My name is Leroy Ferrell, and I am the boy who was injured. I am the son of Mr. A. Ferrell. I am 17 years old now, and was 16 at the time of my injury. My birthday is the 9th of January, and on the 9th of January, 1916, X was 16 years old. The date of this accident was May 15th. On the morning this happened I was going to a picnic with the Baptist Sunday school at Spindle Top .Springs. Tes, sir; a lot of us boys and girls belonging to the Sunday school were going to a picnic. Wte were going on a hay wagon. I don’t know how many there were on the wagon. There was a tarpaulin spread over the wagon, and I think there was hay under it; it was hard as a board. It 'was called a hay wagon. There were three of the large wagons. There were two at this place; one went about half an hour before the other two. I had got to this point when Frank Richards came up and asked us where we were going, and I told him I was going to a picnic at Spindle Top Springs, and he asked me did I want to go with him. I told him I would if he didn’t object, and he said come on, and I got off the wagon to get in his car, and I didn’t notice, the street ear coming, and just about the time I got off the wagon and stepped on the running board, the street car struck the automobile and knocked me off. The wagon was going out Park street, toward Spindle Top Springs. That is south. The automobile was also going south. When I got off the wagon to get on the automobile, the back of the hood of the automobile was just about even with the back of the wagon. The automobile was on the east side of the wagon. I had been sitting in the center of the wagon, on the inside; they were lined up around the wagon, and there wasn’t room for me on the outside, and so I sat in the center with another boy, up in the middle of the bed. It was just a straight platform bod. I was sitting flat down. X was facing toward the front of the wagon. I got off the Í wagon on the side next to the automobile; there was a couple of boys jumped off, and that left me space to get out, that is, they moved over, or got off so I could get off, and I jumped off on the ground and ran around the automobile and got on the automobile. I jumped off within a foot or two of the back end of the wagon; it would be along-side the back wheel. The platform extended over the wheel. It was not in my way. In a foot or two of the hack corner of the wagon is where I jumped off. I went around the rear of the automobile to the left-hand side, going south, which would bo the east side of the automobile. There was no one ahead of me going around there. I just stepped on the running board; I just stepped there, and I threw my hand on the door to open it, and was in the act of opening it, when I was hit. I had not got the door open, and could not have consumed more than a second after I got on the running board. I did not know the street car was coming. I did not hear any sound of any gong or anything of the kind. The noises that were going on were the ehildi'en yelling, hollering, and talking, and the noise of the rumble of the wagon. The automobile was making the noise that an engine will make when it is in motion. I didn’t see the street car at all. With reference to whether I knew whether the automobile was clear of the track or was far enough to clear, or anything about that, I supposed it would clear. “There is a brick pavement there where that accident occurred. The top of the automobile was up, but there were .no side curtains up. I think the back curtain was down. * * * I jumped on that running board about the middle. I approached it going pretty fast; I think I stepped up on it, instead of jumping up on it. As to whether it was sowly or quickly done, going around behind the automobile and getting on that running board, it was as' quick as I could do it. “After I turned the corner of that automobile, I was running. I don’t suppose I had any time to see whether the car was in conflict or would collide with the street car. No, sir; it did not occur to me that they were going to collide, until the street ear hit, because I never saw the street car. I believe when I got on the running board I was free from the street car and the street car lines, if it hadn’t struck the automobile.” ' Appellant testified ou cross-examination as follows: “As to whether or not at that time I stopped and thought about whether or not it was in the clear and whether I recollect that I then thought it was in the clear, will say, I supposed then that it was in the clear. I never, stopped to think about it then. It did not occur to me whether or not the street car would be there. As to whether it occurred to me .to look to see whether the car was in the clear, I didn’t have time to look, in running around there. As to whether the location of the street car and automobile didn’t enter my mind at that time, will say I didn’t know anything about the street car, didn’t think about it, and. didn’t look for it. “When I jumped off, I jumped off between the automobile and the wagon, and went around the automobile, and climbed up on the side, and *657 about that time the street car struck. I knew there was a street car track there. I didn’t notice that it was a double track. As to whether 1 knew there were street cars passing there both ways, I guess I knew they passed both ways. As to whether, if I had stopped to think about it, I would have known a car might hit that automobile just at the time I got around there, will say, I didn’t think anything unusual was going to happen. No, sir; I didn’t look for that car at all; X didn’t listen for the car; it didn’t occur to my mind at all that that car was coming. I was running around that automobile to get on it; I ran out on the street car track and stepped up on the car, and about that time the street car hit us. I suppose if I had looked I would have seen it. If I had had it on my mind, I could have heard it; it was not on my mind. I didn’t think an automobile would go on the track if a car was coming. As to whether I looked to see, I took it for granted the car track was clear. I didn’t thin£ anything about the situation or observe the situation. No, sir; before I jumped off that wagon, X didn’t look for a car or think about one; when I was running around to get on the car I didn’t think about it, and just at the time I stepped up on that car it hit us. Had X done anything to see if that car was coming, I could have got away. I don’t know of anything that was there to keep me from seeing it. It was just about a second between the time I got on the automobile until it was struck.” “The time consumed in running around there, from the time I got off the wagon until I was on the running board, would not be over a couple of seconds. I went around there immediately. My statement about the back curtain being down was just my opinion. I didn’t look to see. I lived in Beaumont 5 years prior to the time I moved tó Houston. I was about the town a good deal. I think that was my first time on Park street. I had been about the town a good deal, and had seen the street cars about town. I said yesterday that I knew there was a street car track on Park street. As to whether I knew cars passed on Park street in both directions, in some places they have belts; I didn’t know but what there was one there. I don’t know where there is a street ear belt in Beaumont. As to whether I knew in Beaumont at that time they passed in both directions, will say I wasn’t sure of it. I guess I had that information if I had stopped there to think and waited there to see. I knew cars passed on that street car track one way or the other. As to whether when I passed over there I looked for a car in either direction, will say, in fact, I didn’t know I was on a street car track. There was nothing to keep me from seeing it, only going around the car. I didn’t notice where the wagon was in reference to the street car track. In fact, I didn’t notice the street car track at all. As to whether I didn’t pay any attention to the situation, but just jumped off and run on regardless of any traffic on the street or street car track or anything else, will say I had to suppose it was clear, or the automobile wouldn’t have been going around. At that time, though, I didn’t think about it. I expect if there had been any noise I would have known there was traffic; if there had been any warnings, I would have known there was traffic; certainly I was relying on those warnings strictly. As to whether I was thinking about those warnings, will say, certainly; I always think about warnings. Yes, sir; I said yesterday that I didn’t hear it, and that had I been listening I could have heard it. I went around there without paying any attention to the street car track or anything of the kind, any further than the attention that is going on in the human body all the timo. Ther-e was no conscious effort on my part at that time to see what was coming. Had I seen that car, had I looked, and been aware of its approach, X would not have tried to get on the automobile. If X had looked, I could not have told whether or not it was exactly in the path of the street car; the corner of it hit, and it was so close that hardly any one could have told it was going t<5 hit. Yes, sir; I said yesterday that the street car struck the automobile at the time I got on. Had I looked and seen it, I certainly would not have gotten on. I had run around to the east side of the automobile, and one side of the automobile at the time I got on it was right on that east track so as to be struck by that car. I mean, if the car had been so it would pass the automobile, I would have been free. As a matter of fact, it seems as though I was not free.” Without discussing the evidence at any length, we have reached the conclusion that the state of the whole evidence was not such as to permit only one inference to be drawn therefrom by ordinary minds. The rule, according to our understanding, is that, to constitute contributory negligence as a matter of law, the acts of the person, as constituting such negligence, must be such as to allow but one inference to be drawn therefrom by ordinary minds, or his acts must be in violation of law, such as a statute or a city ordinance.. Appellee insists that this case comes within the rule announced in Edwards v. Railway, 100 Tex. 23, 93 S. W. 106, and in Railway Co. v. Lane, 55 Tex. Civ. App. 577, 120 S. W. 1011. We think the facts and circumstances surrounding this case are quite dissimilar to those in the cases cited, and is easily distinguishable from them. A street railway does not have the exclusive and paramount use of its tracks in city streets, but has reciprocal rights with that of the general public. The picnic wagons and the automobile were upon Park street on the morning of the accident, and had equal, rights to the occupancy of the street with the street car. This is not a cáse of a person attempting to cross a railroad track or a street car track, but the appellant was lawfully traveling on the street along which appellee’s tracks ran, and had been so traveling for a considerable distance. An automobile approached from the rear and attempted to pass the wagon, according to an ordinance of the city of Beaumont, leaving the wagon to its right. The testimony discloses an invitation to appellant to ride in the automobile. Can it be *658 said that reasonable minds would not differ as to the right of appellant to assume, under all of the circumstances, that it would he safe to board the auto, notwithstanding the fact that he did not stop, look, and listen to ascertain whether there was danger from an approaching street car? It might not require a great degree of mental effort to impress a person that it would not be dangerous to do what appellant attempted to do. People of cities are guided largely in their manner of using the streets upon which cars are run by the known regulations and customs governing the operation of such railways, and they become so accustomed to these regulations that they obey them many times subcohsciously. The electric street car is usually provided with a bell or gong, to be sounded as a warning of its approach. A man is placed ip. the front of the car to keep a vigilant watch ahead to give warning of its approach, keep his car under control, and stop it when there is apparent danger ahead. The actions of the appellant in attempting to board the automobile must be judged in the light of such regulations and customs, in order to determine the question of contributory negligence. The jury, knowing that the automobile had equal rights upon the street with the street car, could have found that the appellant had the right to expect of the operators of the street car care proportionate to the danger of the operation of the car, and, further, that he rightfully assumed that, according to the customs and regulations of the street car company, based upon its equal rights with other vehicles, the street car would not head into an automobile which it was meeting. We do not think that the conduct of persons, based upon the idea that the usual safeguards would be observed by those handling street cars, and which become hazardous only by the negligence of the operators to take precaution against injury, should be treated as contributory negligence, defeating the right of recovery for injury inflicted through the negligence of the servants of said company. We think it was the province of the jury to determine these questions. We are unwilling to say that the evidence in this case does not warrant the conclusion that Leroy Ferrell was not guilty of contributory negligence, .it being the function of the jury to say what precautions were called for by the particular situation and circumstances surrounding his actions. While Ferrell’s testimony is not contradicted, we think that the entire testimony presented issues for the jury to determine, taking into consideration all of the surrounding circumstances. We are unable to find where it has ever been held in Texas that a mere failure to stop, look, and listen before approaching a railroad track, or to go upon a track knowing of the approach of a car, was negligence per se. In the Edwards Case, supra, the evidence showed, without contradiction, that the plaintiff walked along the road at night, approaching the railroad obliquely, with his side toward the track until he came near the crossing, when he turned with the road across the track, and was struck as he reached the center thereof. The train was visible by its electric headlight upon a straight track f®r a mile or more before it reached the crossing, and the noise of its motion was plainly audible. Plaintiff admitted that before stepping on the track he neither looked nor listened for the train, although he was familiar with the crossing, and knew of the frequent passing of trains, and that he could have seen .and heard it had he done so. He relied alone upon the fact that the whistle was not blown nor the bell rung, as required by statute, claiming that he was listening for those signals, and that he did-not look for the train, or. pay any attention to the noise it made, because he did not hear the signal. There it was shown that he well knew he was going into a place of danger, but relied wholly upon the operatives of the engine to give the signal for the crossing, as required by law. We think it could be said by the jury in this case, under the testimony, that there was nothing apparent to indicate to appellant Ferrell that he was even going into a place of danger; that he did not know that the automobile was in conflict with the street car line, and that, if the automobile was in conflict with the street car line, he might have concluded that the automobile would clear the street ear line. In the Lane Case, supra, Lane stepped in front of a moving street car, whose track was not obstructed until Lane obstructed it, just a moment before the collision. The testimony showed that Lane knew that a street car might be passing, and that it would have nothing to indicate to it that it could not pass with safety at its ordinary speed, while appellant, in the instant case, knew that the automobile had been occupying the same position along the track for some distance. He knew it was broad daylight, and it could be found that he had a right to believe that, even though the automobile was, on the track, the motorman would see it, and have his car under control and avoid a collision. Lane knew that a street car, unwarned of danger, might come upon him should he step onto the track, and took no precaution whatever, while Ferrell saw a situation that was not necessarily dangerous until made so by the negligence of the motorman driving the street car, and that the auto was upon the street lawfully, in open view of the operatives of the car had they been looking. He did not know of the. approach of the street car, nor that the automobile did not clear, nor that the motorman was not keeping a lookout. Lane saw no object lawfully *659 on the track, which he had a right to assume would not be run into by a street car, while Ferrell attempted to take passage on an automobile that was lawfully on the street car track, and the jury could have found that at the time there was nothing apparent that a street car would be negligently run into it. Lane knew that he was getting onto the track, while the jury might have concluded from the testimony that Ferrell did not know that the automobile was on the track, and th¿t it was impossible to tell from his position whether the automobile was clear of the track. Lane was not invited to come onto the track, while appellant was invited to take passage on the auto, and the jury could have concluded, under the testimony, that he had a right to believe that the auto was not in danger of the street car. In the Lane Case, there was no negligence whatever shown upon the part of the operatives of the street car, and the evidence is conclusive that but for Lane’s negligence the injury would not have occurred. It becomes convincing to the ordinary mind, upon reading the evidence as to the conduct of'Lane, that he was guilty of negligence, while in the case at bar, the evidence is not conclusive, but is such that reasonable minds might differ. In the case of San Antonio Traction Co. v. Levyson, 52 Tex. Civ. App. 122, 113 S. W. 569, the court said: “If it be conceded, as appellant contends, that deceased stepped immediately in front of a moving car, it does not necessarily follow that he was guilty of negligence per se. This depends upon the attending facts and circumstances. It has been h'eld," even in a case where one stepped on a railway track immediately'in front of a string of moving railway cars and was killed by being run over, that the jury were warranted in finding he was not guilty of contributory negligence in view of the. facts and circumstances. G., H. & S. A. Ry. v. Conuteson, 51 Tex. Civ. App. 1, 111 S. W. 188. The cases of Texarkana & Ft. S. Ry. v. Frugia, 43 Tex. Civ. App. 48, 95 S. W. 565, and St. L. & S. F. Ry. v. Summers, 51 Tex Civ. App. 133, 111 S. W. 211, are of like import. The law upon a question of this character is much more favorable to one who goes upon a street railway track in front of a moving car than it is to one who steps in front of a. steam engine. In the former case, the rights and duties of the parties are reciprocal. In the latter the right of the railroad to the use of its track is ex necessitate superior to the individual, and, if he interferes with this right by going on a railway track in front of a moving train, he ordinarily becomes a trespasser and guilty of negligence as a matter of law. A street railway, as its very name imports, is ordinarily constructed and maintained in streets of cities which are intended for and used by the general public, and this use by the public of the streets is not subordinate to the use of a street car company to run its cars along it. In the exercise of the right to run its cars along a public street, the company must regard the rights of the public in its use and operate them with due regard to the right of individuals. Ordinarily, a member of the public will not be guilty of negligence when he is in the legitimate exercise of the use of a public street, even though it be that part upon which a street railway is constructed over which the company propels its cars. As it necessarily takes on and discharges its passengers in the streets over which it runs its cars, it is its duty to especially exercise ordinary care to prevent injuring those who are on the street and crossing its track for the purpose of taking passage.” It cannot be said that when a person is on a street car track in the exercise of his lawful right and simply makes a mistake of judgment, having a reason for believing himself safe, that it makes his action negligence per se, and therefore guilty of contributory negligence as a matter of law. The exercise of a person’s judgment, although in error, does not make his action negligence as a matter of law. If there is any circumstance or the existence of any condition that would authorize a reasonably prudent person to believe that he was acting wisely, or his acts under such condition would he questionable in the mind of an ordinarily prudent person, they could not be said to constitute contributory negligence as a matter of law. It was said in Railway Co. v. Huebner, 42 S. W. 1021, that a failure of one to look and listen while traveling in a wagon slowly for a distance of 50 feet in approaching a crossing, when by looking or listening at any time an approaching train could have been discovered, was not contributory negligence as a matter of law. In the case of Adams v. Railway Co., 164 S. W. 853, it was held that plaintiff was not guilty of contributory negligence as a matter of law, the facts being that plaintiff had been traveling along the railroad 50 or 60 feet from the track for three or four miles in an automobile. The road turned across the track at a point about 50 or 60 feet from the track. Adams testified that he did not look or listen for the cars between that point and the track, and had he looked he could have seen the train coming for a mile or two miles either way. The explanation offered for his not looking or listening was that he relied on the usual signals for the approach of a train, and, further, that he was noticing a team that was becoming frightened at his car on the other side of the track, and was engaged also in controlling his machine. He stopped his car on the railroad track, watching the frightened team. The court cites the Lee Case, 89 Tex. 588, 36 S. W. 63, and distinguishes the case from the Edwards Case, supra. We cite, further, Galveston Electric Co. v. Antonini, 152 S. W. 841; San Antonio Co. v. Haines, 45 Tex. Civ. App. 289, 100 S. W. 788; San Antonio Traction Co. v. Levyson, 52 Tex. Civ. App. 122, 113 S. W. 569; Railway Co. v. Mechler, 87 Tex. *660 631, 30 S. W. 899; San Antonio Traction Co. v. Upson, 31 Tex. Civ. App. 60, 71 S. W. 565; City Railway Co. v. Thompson, 20 Tex. Civ. App. 16, 47 S. W. 1038. We have reached the conclusion that the facts in this case are such as require the submission of the question of contributory negligence of appellant to the jury, and therefore reverse and remand the case. HIGHTOWER, C. J., did not sit in this case. Footnotes [1] <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes