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the alarm of fire, to repair with the utmost HOUSTON CITY ST. RY. CO. v. RICHART speed to the fire. C. C. Richart was the et al.

driver of a hose cart, and C. G. Richart, the (Court of Civil Appeals of Texas. Sept. 27,

son of C. C. Richart, was an assistant fore1894.)

man in company No. 6 of said fire departSTREET RAILROAD-INJURIES TO MEMBER OF CITY

ment, and it was his privilege, and his duty FIRE DEPARTMENT EXPERT WITNESS Evi- as well, to ride, when opportunity offered, DENCE--IMPUTED NEGLIGENCE-EXCESSIVE Dam- upon the hose carts of the fire department,

when summoned to the scene of a fire. On 1. In an action by the driver of a hose cart of a fire department, and his minor son, a

the day aforesaid, about the hour of noon, member of such department, against a street

the alarm of fire was sounded, and the plainrailway company, for personal injuries to the tiff C. G. Richart, at the time happening at son received while crossing defendant's track, caused by its defective construction, such driver

the engine house of said company on Washmay give his opinion as to whether he was ington street, started thence with his father driving at the time at a safe rate of speed, upon the hose cart for the fire. The cart was where it appears that he has had much experi- drawn by two spirited and powerful horses, ence in driving such carts. 2. Evidence that defendant's track was

and at the intersection of Washington and built in the only manner it was permitted by the

Fifth streets the cart was turned over and city to build it is immaterial.

upon both the father and the son, and each 3. Evidence of the condition of defendant's

was severely and permanently injured in track at the place of the accident is admissible. 4. Evidence is admissible to show that de

his person. C. G. Richart had both legs and fendant's manager promised the chief of the several of his ribs broken. He was also infire department that the track where the acci

jured by a cut in his head. He was confined dent occurred should be repaired, and that such promise was communicated to the father, with

to his bed six or seven weeks. At the time of out any allegations in the petition to that effect. the trial-two years subsequent to the time

5. Where a father and his minor son are when he was injured-he was unable to members of a city fire department, and both are injured by the turning over of a hose cart driv

stand long at a time. If he did, his legs pain. en by the father, caused by the defective con

ed him. The right leg was crooked, and struction of a street-railroad track at a street shorter than the left, and the left was broken crossing, the negligence of the father, if any, in two places. At the time the cart was overcannot be imputed to the son. 6. Where a mechanic, 18 years old, has

turned upon them, the plaintiffs were atboth legs and several ribs broken, and a cut on tempting to cross the railway. They were his head, and such injuries are permanent, and driving at a rate not less than seven miles materially diminish his capacity to earn money by manual labor, $7,500 damages are not excess

per hour. They were required by the rules ive.

of the fire department to drive at full speed. Appeal from district court, Harris county;

As they approached the intersection of Fifth

with Washington street they relaxed their S. H. Brashear, Judge.

gait, and when the hind wheel of the cart Action by Charles G. Richart and Charles

struck the rail of the defendant's road it did O. Richart against the Houston City Street

not mount the rail, but the binder part of the Railway Company for personal injuries caus

cart was thrown several feet upwards, when ed by defendant's negligence. From separate judgments in favor of plaintiffs, defend- plaintiffs. The cart, with hose, weighed 4,

the cart tumbled over and upon both of the ant appealed. After appeal, plaintiff Charles

200 pounds. The rails of the car track were C. Richart remitted the judgment in his favor, and it is reversed. The judgment in

not upon a level with the streets, but were

from four to six inches above the surface of favor of Charles G. Richart is affirmed.

the ground. This condition of the railway Jones & Garnett, for appellant. Hutche- had existed for some time previous to the son, Campbell & Sears, for appellees.

accident, and was known to the manager of

the street-railway company. C. C. Richart PLEASANTS, J. This is an appeal from had complained to the chief of the fire de a judgment rendered for appellees in the dis partment about the matter, and the latter had trict court of Harris county. The plaintiffs interviewed the manager of the street railwere father and son; the son being a minor, way on the subject, and the manager had 18 years of age. The suit was to recover com- promised to have the track repaired and put pensation for injuries sustained by the plain- in proper condition, and this promise had tiffs, and alleged to have been caused by the been reported to C. C. Richart, but at the negligence of the defendant. The alleged time he attempted to cross the track he did negligence on the part of defendant was not know whether the track had been put in that it knowingly permitted and allowed the proper condition or not, nor did he look to rails of its road, at the intersection of Wash- see what its condition was before driving ington and Fifth streets in the city of upon it. C. G. Richart had traveled over Houston, for about the distance of a hundred Washington and Fifth streets several times feet, to stand out and protrude four inches in the hose cart before the accident, but he above the level of the streets. The plaintiffs, had paid no attention to the railway track, on the 27th of October, 1891, were both mem- nor had he ever been informed of its condibers of the fire department of the city of tion by any person. He had not observed Houston, and it was the duty of each, upon that the rails protruded above the surface of ground when passing through these streets, , amply sufficient to sustain the verdict in nor did he discover that such was the condi- favor of the plaintiff C. G. Richart, and that tion of the track at the time he was injured. the judgment rendered for him should be The plaintiff C. C. Richart alleged damages affirmed, unless there was error committed for loss of time of his son, his diminished ca- by the court in the instructions given to the paeity for labor, and for loss of time in nurs- jury, or in the admission or exclusion of eviing and giving necessary care to him during dence, which necessitates a reversal of the his suffering; and the son claimed damages judgment. Before noticing the assignments for his suffering, and for his diminished ca- of error, we take occasion to say that counsel, pacity for earning money.

in the preparation of their brief, have in The defendant answered by general de- several instances not complied with rule 31 murrer, plea of misjoinder of cause of action of this court. This rule is not observed by and of parties, general denial, and by two referring the court to a given page of the special pleas: First. That defendant was transcript for the facts relied on to explain an incorporated company, and was, by the and sustain a proposition submitted under act of incorporation passed by the legislature an assignment of error. The rule requires of Texas, duly authorized, with the consent that to each proposition there shall be subof the city council of Houston, to construct joined a brief statement from the record, toand to operate street railways in the streets gether with a reference to the page or pages of said city, and by virtue of its charter, and of the record. The reference is for the purthe consent of said city, duly obtained, it had pose of verifying the statement, should its constructed its railway track in Washing. accuracy be questioned. The statement is ton and Fifth streets, and at their intersec- required for the purpose of relieving the tion, under the direction and superintend- court from the labor of reading the transence of the authorities of said city, and that cript, until counsel shall disagree as to what said railway was built in the mode and man- the record contains. Whenever counsel fail ner required by said city, and that the same to observe and obey this rule, they must unhad been maintained in the same condition derstand that they do so at the peril of hav. in which it was constructed; and that said ing their assignments ignored by this court. railway track was at the time of the alleged The first assignment assumes that there injuries of plaintiffs in the same identical was error in permitting the plaintiff C. C. condition in which it was when first built, Richart, over objection of defendant, to and that defendant had no discretion in build- state as an expert his opinion as to whether ing its railway in the streets of the said city; or not he was driving the hose cart at a that the plan and mode of construction of safe rate of speed at the time the plaintiffs said track was prescribed by the city author- were injured. The court is of the opinion ities, and defendant was, by ordinances of that there was no error in the admission of the city, required to build its railway in ac- the evidence. The hose cart or wagon is cordance with the prescribed plan, and in no not an ordinary vehicle, and the duty of the other manner; and that, therefore, if the plaintiff as a fireman required bim to drive plaintiff C. G. Richart received the injuries at a speed which prudence would forbid to complained of, such injuries were not caused persons generally traveling upon the streets by any negligence or fault of the defendant; of a city, and the evidence shows that the but that the same resulted from the negli- | witness had much experience in driving these gence of said plaintiff himself, or that of the carts. city of Houston. Second. That if the said The bill of exceptions to which the third plaintiff C. C. Richart was injured as alleged, assignment refers us does not disclose what his injuries resulted from the negligence of was the objection to the evidence the exhimself and his coplaintiff, and that if the clusion of which is complained of, and we plaintiffs had exercised ordinary care and are therefore unable to determine whether prudence in driving the hose cart at the there was error in the exclusion of the evitime of the alleged accident said cart would dence or not. Every presumption must be not bave been overturned as alleged, and the indulged in support of the ruling of the plaintiffs would not have been injured. The court. record discloses no action taken by the court There was no error in the refusal of the upon the demurrers. The trial resulted in a court to permit the defendant to prove by verdict and judgment for plaintiff C. G. Rich- the witness McGregor that the defendant's art for $7,500, and a verdict and judgment track was built and maintained in the only for C. C. Richart for $500, and, a new trial manner defendant was permitted to build it being refused it, the defendant appealed to | by the city of Houston, because such evidence this court. The plaintiff C. C. Richart hav- was immaterial. If defendant's railway ing remitted the judgment in this court ren- was so constructed as to render it a dangerdered for him, that judgment will be re- ous obstruction in the streets, the fact that rersed, and here rendered for appellant the city of Houston required the railway to against the appellee C. C. Richart.

be so constructed, and would permit defendOur conclusions upon the facts of this case ant to construct it in no other manner, would are given in the foregoing statement, and not relieve defendant from liability to those we are of the opinion that the facts are who, without fault or negligence on their part, sustained injury by reason of such ob- cart. Vide Beach, Contrib. Neg. c. 4, $$ 33, struction. The city was without power to 36. The employment of the plaintiff C. G. license the defendant to so construct its track Richart, as we have seen, made it his duty as to make it hazardous to those traveling to ride on the cart, if an opportunity offered, upon the streets, exercising ordinary care when summoned to the scene of a fire, and and prudence. One guilty of a wrong may it was the duty of the driver to carry him. not justify or excuse himself by implicating The evidence does not charge C. G. Richart others in the commission of the wrongful act. with knowledge of the condition of defendVide Railway Co. v. Delesdernier, 84 Tex. ant's track; and in going with the speed 82, 19 S. W. 366. The court did not err in his employment required he could not be admitting the testimony of the expert Ken- expected to discover dangers such as the one nedy as to the condition of defendant's track which caused his injury. Our conclusion, at the place at which plaintiffs were injured, then, is that the plaintiff C. G. Richart is not and at the time of the injury.

chargeable with either actual or imputed The eighth assignment is well taken. The negligence, and that, therefore, the error in instruction complained of was erroneous, the charge is immaterial as to the issues bebut, inasmuch as the plaintiff C. C. Richart tween that plaintiff and the defendant. has entered a remittitur of the judgment ren- The eleventh assignment is too general and dered for him, the error does not authorize a indefinite, and need not, therefore, be conreversal of the judgment rendered for the sidered. plaintiff C. G. Richart. At the request of The assignment that the verdict is excess the plaintiff the court gave to the jury the ive is, we think, not well taken. The ocfollowing instruction: “That if the tracks cupation of the plaintiff is that of a mechanic. of the defendant, at the corner of Fifth and The evidence shows beyond question that his Washington streets, were in a bad and injuries were severe, and that they are perdangerous condition to persons passing over manent, and that his capacity to earn money the same, and you believe that complaint of by manual labor is materially diminished. the dangerous condition of said tracks, if The tenth and thirteenth assignments need such was the case, was made to the defend- not be discussed. ant, or any of its authorized agents, and if We find no material error in the record, said defendant, or its authorized agents, and we therefore affirm the judgment as to promised or agreed to repair said tracks, and the plaintiff C. G. Richart, and the judgment if you further believe that such promise or in favor of C. C. Richart will be reversed, agreement, if any, was communicated to C. and here rendered for the defendant against C. Richart by some person authorized to do said plaintiff. Reversed and rendered. so, then you are instructed that said Richart would have a right to rely on such promise, if any; and if, while he was relying on the same, plaintiff was hurt or injured by want HOUSTON CITY ST. RY. CO. y. RICHART. of reasonable care of the defendant, as in the

(No. 633.) court's charge defined, then you will find for

(Court of Civil Appeals of Texas. Sept. 27, plaintiffs." This charge is assigned as error.

1894.) The objection that the issue as submitted to the

PERSONAL INJURIES-DAMAGES - PLEADING AND jury was not authorized, for the reason that PROOF--ACTION AGAINST STREET RAILWAY. there was no averment in the petition to 1. Expenses for medical attendance and allow the admission of the evidence upon nursing cannot be recovered unless specially which the charge is based, is not sound. No

pleaded.

2. A city street railway is liable for inaverment, such as is contended for by the juries caused by the unsafe condition of its appellant, was required to authorize evidence tracks, though they were constructed under the by the plaintiffs of a promise by the manager

supervision of the city engineer.

3. The death of a person may be proven by of the railway to the chief of the fire depart- general reputation in the community in which ment that the condition of the track at the he lived. intersection of Washington and Fifth streets should be changed, and the track repaired, s. H. Brashear, Judge.

Appeal from district court, Harris county; and that such promise was communicated

Action by C. C. Richart against the Housby the chief of the fire department to the

ton City Street-Railway Company. There

was a judgment for plaintiff, and defendant objectionable in several respects, but in none

appeals. Reversed. which would authorize a reversal of the judgment in favor of plaintiff C. C. Richart. Jones & Garnett, for appellant Hutcho In our judgment, the evidence does not war- son, Campbell & Sears, for appellee. rant an issue submitted to the jury as to whether or not the plaintiff C. G. Richart PLEASANTS, J. This is a companion was guilty of contributory negligence; and case to cause No. 636 (Railway Co. v. Richthe father's negligence, if he was guilty of art, 27 S. W. 918), this day decided by this any, cannot be imputed to the son. The court. The facts are nearly the same in each father was neither the servant nor the agent case, and many of the assignments are the of the son in carrying him upon the hose same; and we shall not, therefore, discuss in this opinion such assignments as are com- no evidence on the trial of any such expenses mon to the two cases, and which are discuss- incurred by the plaintiff as a result of the ined in the opinion delivered upon the decision juries complained of in plaintiff's petition." of said cause No. 636; nor will we comment This instruction is assigned as error, and we upon the facts of this case further than may are of the opinion that the assignment must be necessary for the elucidation of the law be sustained, and that this error in the questions presented by the assignments of er- charge necessitates a reversal of the judgror for our determination, since the judgment ment. The charge submits an issue to the appealed from must be reversed, and the jury warranted by neither the pleadings nor cause remanded for a new trial.

the evidence, and we cannot say that the The first assignment is as follows: "The jury were not influenced in their finding by court erred in allowing the witness John the instruction. Charlton, over the objection of the defend- The sixth assignment of error impugns the ant, to give evidence on the trial as to what correctness of the following instruction given the testimony of Dr. Duffau, alleged to be the jury: "While the ordinance of the city dead, was in regard to the plaintiff's inju- of Houston makes it the duty of the defendries, and the extent of the same, on a former ant to construct and build its railways on the trial of this cause, because there was no suffi. streets of the city under the direction and cient evidence to show that Dr. Duffau was supervision of the city engineer, yet whether dead, and no evidence sufficient to prove his the defendant did construct its tracks oa death, and because there was better evidence Fifth and Washington streets under the diof the alleged death of Dr. Duffau than that rection and supervision of said engineer is given on the trial, all of which is shown by not a matter of inquiry in this case; and you defendant's bill of exceptions No. 1, on file will not consider same as any reason for re. in this cause." There was no error commit- lieving the defendant company, if you believe ted in the admission of this evidence. The defendant's tracks at said place were not in objection here made to the evidence was not reasonably safe condition; that is, if the demade upon the trial when the testimony was fendant did not use reasonable care in mainoffered; but, be that as it may, we think taining or building same, if such want of care the testimony of each of the witnesses, Crank is believed by you to be the cause of the acand the plaintiff, was competent to prove cident." There is no error in this charge. the death of Dr. Iuffau. Death is generally We deem it unnecessary to notice the rea matter of inference from facts proved. maining assignments of error. For the error General reputation in the community is suf- indicated, the judgment of the lower court is ficient proof. Vide 1 Whart. Ev. $ 223. reversed, and the cause remanded for an

There was no error in the admission of the other trial. Reversed and remanded. testimony of Kennedy to prove knowledge of the condition of the street railway at the intersection of Washington and Fifth streets on the part of the superintendent of the rail

RICE et al. v. MEXICAN NAT. R. CO. way. Knowledge on the part of defendant

(Court of Civil Appeals of Texas. Sept. 27, of the condition of its track was charged in

1894.) the petition.

INJURIES TO WIFE-Right to SUE THEREFORThe third assignment of error is discussed,

LIMITATIONS-COVERTURE. and is decided against appellant, in the opin- 1. The cause of action for personal injuries ion delivered upon the decision of the com- to the wife accrues to the community estate reppanion case to this (No. 636).

resented by the husband, and in the absence of

a showing of exceptional facts entitling the wife The fourth assignment is too general, and to relief he alone can sue. will not be considered.

2. The refusal of a husband to bring an ac The court gave the following charge: “The

tion for injuries to the wife does not entitle

the wife to sue alone. court erred in charging the jury that, if they

3. The coverture of the wife does not prefound for the plaintiff, they would consider vent the running of the statute of limitations 'the pain and suffering, if any, loss of time as against a right of action for personal injuries and lessened capacity to earn money at his

to her, since the husband is the person author

ized to sue therefor. usual vocation, if any, and the expense in. curred reasonably and necessarily for medi

Appeal from district court, Nueces county; cal attention and nursing as a result of said

J. G. Russell, Judge. injury, if any, for which defendant is liable.'

Action by Mrs. A. E. Rice and husband This charge was and is erroneous, and to de

against the Mexican National Railroad Comfendant's prejudice, and should not have been

pany for personal injuries. Judgment for degiven, because there was no allegation in

fendant, and plaintiffs appeal. Affirmed. plaintiff's petition, or any other pleadings of G. R. Scott & Bro., for appellants. Dodd the plaintiff in the case, that the plaintiff in- & Mullally, for appellee. curred any expense for medical attention or nursing as a result of the injuries complain. WILLIAMS, J. According to the petition, ed of by the plaintiff in this cause, and there the personal injuries for which redress was was no prayer in plaintiff's petition to recor- sought were inflicted upon Mrs. Rice more er any such expenses, and because there was than a year before she instituted suit. She

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GENCE.

was, when hurt, and still is, a married but none of them sustain the proposition woman, and sued originally without joining that the wife, under the facts alleged, could her husband as plaintiff, alleging simply that sue alone on this cause of action. That point, he had refused to sue. A general demurrer however, is only incidental to the question and special exceptions, based on the statute of limitation. The husband, by the amended of limitations and upon the fact that the petition, joined in the suit, and it should suit was improperly brought by the wife have been entertained, upon proper terms, alone, were sustained in the court below. unless the action was barred. But from Plaintiff thereupon, joined by her husband, what has been said it follows that the suit filed a second amended original petition as was brought too late. The coverture of the a substitute for the former one, from which wife did not prevent the statute from runthe allegation that the husband had refused ning. Rev. St. art. 3222, provides: "If any to bring the suit is omitted, and the fact person entitled to bring an action • is alleged instead that he had employed be, at the time the cause of action accrues, counsel to bring suit immediately after the

a married woman,

• the injuries were inflicted, and that both he and time of such disability shall not be deemed his wife believed this had been done until a portion of the time limited," etc. In this this suit was brought, and after the year had case it was the husband, and not the wife, expired. Special exceptions, which raised who was "entitled to bring the action" when the question of limitation, and the original the cause of action accrued, and hence her nonjoinder of the husband, were sustained, coverture did not impede the running of the and, plaintiffs declining to amend, the suit statute. The ruling of the court below was was dismissed.

correct, and is affirmed. The cause of action for the recovery of damages for injuries to the person of the wife was community property, and accrued to the community estate. That estate, un

SANCHEZ v. SAN ANTONIO & A. P. R. CO. der the law, is represented by the husband. (Court of Civil Appeals of Texas. Sept. 27, In him the right to sue is vested, and by

1894.) him it must be asserted, unless exceptional INJURIES TO PASSENGER-CONTRIBUTORI NEGLIfacts are alleged, in which the wife's rights and necessities require that she should re

Where plaintiff left the car in which he

had been riding, and walked on defendant's ceive the aid of the court. Railway Co. v. railroad track, without looking for another train Burnett, 61 Tex. 638; Ezell v. Dodson, 60 that he knew was then due, he cannot recover Tex, 331. In the case last cited the law on

for injuries received by such train striking him,

if the traininen could not, with the exercise of the subject is so fully stated that reference

care, have avoided the accident after seeing need only be made to it to show that the plaintiff's peril, though the relation of carrier wife has no right to sue upon a cause of and passenger yet existed, and plaintiff was pre action which has accrued to the community

vented from hearing the train by the noise of

an engine standing near. estate simply because the husband refuses to sue. Additional facts, which need not

Appeal from district court, Nueces county; be here mentioned, must be shown to entitle

J. G. Russell, Judge. her to a standing in the court. In the case

Action for personal injuries by Macario of Nickerson v. Nickerson, 65 Tex. 281, the

Sanchez against the San Antonio & Aransas cause of action did not, under the facts there

Pass Railroad Company. Defendant had a existing, accrue to the community estate,

judgment, and plaintiff appeals. Affirmed. but to the wife, because the husband was G. R. Scott & Bro., for appellant. R. W. the wrongdoer. Hence it was held that the Stayton, for appellee. wife could maintain the action. The passage in the opinion in Railway Co. v. Gwalt- WILLIAMS, J. On a former appeal of ney, 2 Willson, Civ. Cas. Ct. App. $ 685, on this case a judgment of the district court the subject of limitation, was an obiter dic- sustaining exceptions to the petition and dis. tum. The suit there to recover damages for missing the cause was reversed by this court. injuries to the wife's person was brought 3 Tex. Civ. App. 89, 22 S. W. 242. There by the husband in due time, and no question has been a trial before a jury, resulting in a of limitation properly arose. In Carter V. judgment for defendant, and the plaintiff Conner, 60 Tex. 52, the wife was living apart again appeals. from the husband, pending suit by her for Plaintiff was a passenger on defendant's divorce, based upon sufficient grounds, which train from Corpus Christi to Gregory, at were afterwards sustained, when creditors which place is the junction between the two of her husband took from her possession branches of the road, one of which goes to exempt property, to which, under an order Corpus Christi and the other to Rockport. of the court in the divorce suit, she was en. The train on which plaintiff arrived at Greg. titled. The cause of action accrued to her, ory stood on the main track, while that from and not to the community, and her coverture Rockport entered the depot grounds over a was held to prevent the statute from barring side track, which was between the main it. These are the authorities relied on by track and the station house. Appellant, appellant which are most nearly in point, | alighting from the car before the latter train

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