North Side St. R'y Co. v. Want

Opinion by White, P. J. § 167. Pleadings; amendment of, on appeal from, justice's to county court. This suit was instituted in a justice’s court by appellees to recover from appellant damages occasioned by a collision of one of its cars with a horse and wagon. There was a judgment for plaintiffs in justice’s court. Appeal therefrom by the railway company to county court. In the latter court the plaintiffs amended their pleadings, and claimed, as additional damages, the full value of the horse which had died, and other expenses which had accrued in the premises since the said trial in the justice’s court. This amendment was proper, and did not set up a new cause of action [2 Civil Cas. Ct. App., §§ 818, 835], and the court did not err in overruling defendant’s exceptions to the same. § 168. Street car; negligence in operating not to be inferred from mere fact that there had been a collision. In this case it devolved upon the plaintiffs to prove negligence on the part of the railway company in order to entitle them to recover. In our opinion the evidence wholly fails to establish any such negligence. The car, at the time of the accident, was running, for aught that appears, at its usual rate of speed on its track. It is. not shown that the street-car driver saw, or could have seen, the danger of a collision, nor that he could possibly have averted it after it became apparent. It occurs to us that if any negligence be shown at all, it was upon the part of the driver of the horse and wagon, whose conduct in pulling his horse out from the sidewalk towards the [238] electric street car caused the witness, Scott, who testified for plaintiffs, to call the attention of a by-stander to the danger of a collision. Under the facts, the court erred in refusing to instruct the jury that they were not authorized to infer negligence on the part of the railway company from the mere fact that there had been á collision. [2 Civil Cas. Ct. App., § 421; Railway Co. v. Faber, 77 Tex. 153.] We are of opinion the verdict and judgment are not supported by, but are against, the law and the evidence. November 12, 1890. Reversed and remanded.