Ft. W. Rosen Heights St. Ry. v. Hawes

Appellee recovered a judgment for damages on account of injuries received by his wife by being run over by one of appellant's cars in the city of Fort Worth.

Among other things, the court charged the jury as follows: "Under the ordinances of the city of Fort Worth it is the duty of the street car company operating street cars in the city to keep and maintain the top of each rail of each track on a level at all points with the surface of the street; and if you believe and find from the evidence that at the time of the alleged injury the rails of defendant's street car track at the place of the collision were not on a level with the surface of the street, but find that said rails were at that time and place higher than the level of the street; or if you believe from the evidence that at or just before the collision in question defendant's employes in charge of said street car moved the same along the street at a higher rate of speed than seven miles an hour; then in either of these instances the defendant would be guilty of negligence."

It is insisted that the first part of the above charge is erroneous in that it was the duty of appellant to maintain its rails at a level with the true grade of the street outside as fixed by the city engineer; but the charge followed the exact language of the ordinance, which seems to require the rails to be kept on a level at all points with the surface of the street, and it certainly would seem to be a safer rule for the protection of the public that regard should be had to the surface of the street as it actually exists, rather than to the grade line, if there should be any difference between the two.

It is insisted that the latter portion of the charge quoted should not have been given and that appellee's case should have been submitted upon the issue only of negligence with respect to the condition of the rails with reference to the street surface, since it was specifically alleged that his wife's injuries resulted from the condition of the track causing the vehicle in which she was riding at the time to "stick" on the track and to be run over by appellant's approaching car. But appellee in the same connection alleged negligence with respect to the speed of the approaching car by reason of which his wife was run over and injured, and if his proof failed in the first particular, we see no reason why he should not recover upon proof of the latter.

Upon the question of contributory negligence the court charged as follows: "If you believe from the evidence that Jim Reynolds, who was driving the surrey at the time of the collision, was subject to the control and direction of Mrs. Hawes, and you find that said Reynolds was guilty of negligence in attempting to cross the track at the time and place and under the circumstances shown by the testimony; or if you believe from the evidence that Mrs. Hawes, as they started across the track, seized the lines and thereby impeded the progress of the driver, and that in so doing she was guilty of negligence; and you further find that such negligence, if any, in either of the instances last above mentioned, caused or contributed to cause the injury, if any, then plaintiff can not recover, whether defendant was guilty of negligence or not."

First, it is objected that the charge should not have assumed that Jim Reynolds was driving the surrey at the time of the collision, but we think such assumption was justified under the facts, since it is undisputed that he did begin driving the vehicle upon leaving the stable for appellee's home, and there is no controversy but what he continued to drive until the accident, or at least about the time the vehicle started across the track, when Mrs. Hawes seized the lines, which feature, however, is presented in the second portion of the charge quoted. Next, it is objected that the charge submitted to the jury to find whether or not the driver Reynolds was subject to the control and direction of Mrs. Hawes — a fact about which there was no dispute. But it certainly is not reversible to allow the jury to find in keeping with the undisputed facts, and the present charge nowhere authorized them to find otherwise.

It is further insisted that the court erred in limiting the jury upon the issue of contributory negligence to a consideration of the act of Jim Reynolds in attempting to cross the track and to the act of Mrs. Hawes in seizing the lines, the insistence being that there were other acts of contributory negligence which the jury might properly have considered. But we have carefully examined the testimony and conclude that the court's charge was a full presentation of the defense.

Appellant requested special instructions meeting the various objections urged to the charges given, but if we are correct in our conclusions with reference to the main charge, they were of course properly refused. We notice in passing, however, that each of the requested charges directed a finding for appellant unless the jury should find "that the motorman did not do all in his power to avert the injury after he actually discovered plaintiff's wife's peril." The issue of discovered peril was not submitted, and appellant's brief states that the evidence did not justify its submission. It may be doubted, therefore, whether the court should have given any of these special instructions, thus confusing the minds of the jury with an issue not raised by the evidence, even though the submission was requested by appellant.

There was no error in admitting in evidence a copy of the city ordinances with reference to the speed of street cars within the limits of the city of Fort Worth, and with reference to the maintenance of street railroad tracks, since the evidence offered was contained in a book which purported to be the ordinances of the city of Fort Worth, published presumably in obedience to the provisions of the charter of such city imposing upon it the duty of publishing its ordinances. Hall v. International G. N. Ry. Co., 98 Tex. 100.

Appellee alleged that as a result of his wife's injuries she had been unable to perform any labor of any kind whatever, and that by reason of the permanent character of such injuries he had been damaged in a sum stated. The court therefore properly instructed the jury that in estimating appellee's damages they would take into consideration the value of the loss of his wife's services in attending to her usual and ordinary household duties. In such a case it is neither necessary to allege or prove the value of such services to make them elements of damage. Gulf, C. S. F. Ry. Co. v. Booth,97 S.W. 128. We find no error in the judgment and it is affirmed.

Affirmed.

Writ of error refused.