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1. In an action by the driver of a hose cart of a fire department, and his minor son, a member of such department, against a streetrailway company, for personal injuries to the son received while crossing defendant's track, caused by its defective construction, such driver may give his opinion as to whether he was driving at the time at a safe rate of speed, where it appears that he has had much experience in driving such carts.

2. Evidence that defendant's track was built in the only manner it was permitted by the city to build it is immaterial.

3. Evidence of the condition of defendant's track at the place of the accident is admissible.

4. Evidence is admissible to show that de fendant's manager promised the chief of the fire department that the track where the accident occurred should be repaired, and that such promise was communicated to the father, without any allegations in the petition to that effect.

5. Where a father and his minor son are members of a city fire department, and both are injured by the turning over of a hose cart driven by the father, caused by the defective con struction of a street-railroad track at a street crossing, the negligence of the father, if any, cannot be imputed to the son.

6. Where a mechanic, 18 years old, has both legs and several ribs broken, and a cut on his head, and such injuries are permanent, and materially diminish his capacity to earn money by manual labor, $7,500 damages are not excessive.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by Charles G. Richart and Charles C. Richart against the Houston City 'StreetRailway Company for personal injuries caused by defendant's negligence. From separate judgments in favor of plaintiffs, defendant appealed. After appeal, plaintiff Charles

C. Richart remitted the judgment in his favor, and it is reversed. The judgment in favor of Charles G. Richart is affirmed. Jones & Garnett, for appellant. Hutcheson, Campbell & Sears, for appellees.

PLEASANTS. J. This is an appeal from a judgment rendered for appellees in the district court of Harris county. The plaintiffs were father and son; the son being a minor, 18 years of age. The suit was to recover compensation for injuries sustained by the plaintiffs, and alleged to have been caused by the negligence of the defendant. The alleged negligence on the part of defendant was that it knowingly permitted and allowed the rails of its road, at the intersection of Washington and Fifth streets in the city of Houston, for about the distance of a hundred feet, to stand out and protrude four inches above the level of the streets. The plaintiffs, on the 27th of October, 1891, were both members of the fire department of the city of Houston, and it was the duty of each, upon

the alarm of fire, to repair with the utmost speed to the fire. C. C. Richart was the driver of a hose cart, and C. G. Richart, the son of C. C. Richart, was an assistant foreman in company No. 6 of said fire department, and it was his privilege, and his duty as well, to ride, when opportunity offered, upon the hose carts of the fire department, when summoned to the scene of a fire. On the day aforesaid, about the hour of noon, the alarm of fire was sounded, and the plaintiff C. G. Richart, at the time happening at the engine house of said company on Washington street, started thence with his father upon the hose cart for the fire. The cart was drawn by two spirited and powerful horses, and at the intersection of Washington and Fifth streets the cart was turned over and upon both the father and the son, and each was severely and permanently injured in his person. C. G. Richart had both legs and several of his ribs broken. He was also injured by a cut in his head. He was confined to his bed six or seven weeks. At the time of the trial-two years subsequent to the time when he was injured-he was unable to stand long at a time. If he did, his legs pained him. The right leg was crooked, and shorter than the left, and the left was broken in two places. At the time the cart was overturned upon them, the plaintiffs were attempting to cross the railway. They were driving at a rate not less than seven miles per hour. They were required by the rules of the fire department to drive at full speed. As they approached the intersection of Fifth with Washington street they relaxed their gait, and when the hind wheel of the cart struck the rail of the defendant's road it did not mount the rail, but the hinder part of the cart was thrown several feet upwards, when the cart tumbled over and upon both of the

plaintiffs. The cart, with hose, weighed 4,200 pounds. The rails of the car track were not upon a level with the streets, but were from four to six inches above the surface of the ground. This condition of the railway had existed for some time previous to the accident, and was known to the manager of the street-railway company. C. C. Richart had complained to the chief of the fire de partment about the matter, and the latter had interviewed the manager of the street railway on the subject, and the manager had promised to have the track repaired and put in proper condition, and this promise had been reported to C. C. Richart, but at the time he attempted to cross the track he did not know whether the track had been put in proper condition or not, nor did he look to see what its condition was before driving upon it. C. G. Richart had traveled over Washington and Fifth streets several times in the hose cart before the accident, but he had paid no attention to the railway track, nor had he ever been informed of its condition by any person. He had not observed that the rails protruded above the surface of

ground when passing through these streets, nor did he discover that such was the condition of the track at the time he was injured. The plaintiff C. C. Richart alleged damages for loss of time of his son, his diminished capacity for labor, and for loss of time in nursing and giving necessary care to him during his suffering; and the son claimed damages for his suffering, and for his diminished capacity for earning money.

The defendant answered by general demurrer, plea of misjoinder of cause of action and of parties, general denial, and by two special pleas: First. That defendant was an incorporated company, and was, by the act of incorporation passed by the legislature of Texas, duly authorized, with the consent of the city council of Houston, to construct and to operate street railways in the streets of said city, and by virtue of its charter, and the consent of said city, duly obtained, it had constructed its railway track in Washington and Fifth streets, and at their intersection, under the direction and superintendence of the authorities of said city, and that said railway was built in the mode and manner required by said city, and that the same had been maintained in the same condition in which it was constructed; and that said railway track was at the time of the alleged injuries of plaintiffs in the same identical condition in which it was when first built, and that defendant had no discretion in building its railway in the streets of the said city; that the plan and mode of construction of said track was prescribed by the city authorities, and defendant was, by ordinances of the city, required to build its railway in accordance with the prescribed plan, and in no other manner; and that, therefore, if the plaintiff C. G. Richart received the injuries complained of, such injuries were not caused by any negligence or fault of the defendant; but that the same resulted from the negligence of said plaintiff himself, or that of the city of Houston. Second. That if the said plaintiff C. C. Richart was injured as alleged, his injuries resulted from the negligence of himself and his coplaintiff, and that if the plaintiffs had exercised ordinary care and prudence in driving the hose cart at the time of the alleged accident said cart would not have been overturned as alleged, and the plaintiffs would not have been injured. The record discloses no action taken by the court upon the demurrers. The trial resulted in a verdict and judgment for plaintiff C. G. Richart for $7,500, and a verdict and judgment for C. C. Richart for $500, and, a new trial being refused it, the defendant appealed to this court. The plaintiff C. C. Richart having remitted the judgment in this court rendered for him, that judgment will be reversed, and here rendered for appellant against the appellee C. C. Richart.

Our conclusions upon the facts of this case are given in the foregoing statement, and we are of the opinion that the facts are

amply sufficient to sustain the verdict in favor of the plaintiff C. G. Richart, and that the judgment rendered for him should be affirmed, unless there was error committed by the court in the instructions given to the jury, or in the admission or exclusion of evidence, which necessitates a reversal of the judgment. Before noticing the assignments of error, we take occasion to say that counsel, in the preparation of their brief, have in several instances not complied with rule 31 of this court. This rule is not observed by referring the court to a given page of the transcript for the facts relied on to explain and sustain a proposition submitted under an assignment of error. The rule requires that to each proposition there shall be subjoined a brief statement from the record, together with a reference to the page or pages of the record. The reference is for the purpose of verifying the statement, should its accuracy be questioned. The statement is required for the purpose of relieving the court from the labor of reading the transcript, until counsel shall disagree as to what the record contains. Whenever counsel fail to observe and obey this rule, they must understand that they do so at the peril of having their assignments ignored by this court.

The first assignment assumes that there was error in permitting the plaintiff C. C. Richart, over objection of defendant, to state as an expert his opinion as to whether or not he was driving the hose cart at a safe rate of speed at the time the plaintiffs were injured. The court is of the opinion that there was no error in the admission of the evidence. The hose cart or wagon is not an ordinary vehicle, and the duty of the plaintiff as a fireman required him to drive at a speed which prudence would forbid to persons generally traveling upon the streets of a city, and the evidence shows that the witness had much experience in driving these carts.

The bill of exceptions to which the third assignment refers us does not disclose what was the objection to the evidence the exclusion of which is complained of, and we are therefore unable to determine whether there was error in the exclusion of the evidence or not. Every presumption must be indulged in support of the ruling of the court.

There was no error in the refusal of the court to permit the defendant to prove by the witness McGregor that the defendant's track was built and maintained in the only manner defendant was permitted to build it by the city of Houston, because such evidence was immaterial. If defendant's railway was so constructed as to render it a dangerous obstruction in the streets, the fact that the city of Houston required the railway to be so constructed, and would permit defendant to construct it in no other manner, would not relieve defendant from liability to those who, without fault or negligence on their

part, sustained injury by reason of such obstruction. The city was without power to license the defendant to so construct its track as to make it hazardous to those traveling upon the streets, exercising ordinary care and prudence. One guilty of a wrong may not justify or excuse himself by implicating others in the commission of the wrongful act. Vide Railway Co. v. Deles dernier, 84 Tex. 82, 19 S. W. 366. The court did not err in admitting the testimony of the expert Kennedy as to the condition of defendant's track at the place at which plaintiffs were injured, and at the time of the injury.

cart. Vide Beach, Contrib. Neg. c. 4, §§ 33, 36. The employment of the plaintiff C. G. Richart, as we have seen, made it his duty to ride on the cart, if an opportunity offered, when summoned to the scene of a fire, and it was the duty of the driver to carry him. The evidence does not charge C. G. Richart with knowledge of the condition of defendant's track; and in going with the speed his employment required he could not be expected to discover dangers such as the one which caused his injury. Our conclusion, then, is that the plaintiff C. G. Richart is not chargeable with either actual or imputed

the charge is immaterial as to the issues between that plaintiff and the defendant.

The eleventh assignment is too general and indefinite, and need not, therefore, be considered.

The assignment that the verdict is excessive is, we think, not well taken. The occupation of the plaintiff is that of a mechanic. The evidence shows beyond question that his injuries were severe, and that they are permanent, and that his capacity to earn money by manual labor is materially diminished. The tenth and thirteenth assignments need not be discussed.

We find no material error in the record, and we therefore affirm the judgment as to the plaintiff C. G. Richart, and the judgment in favor of C. C. Richart will be reversed, and here rendered for the defendant against said plaintiff. Reversed and rendered.

HOUSTON CITY ST. RY. CO. v. RICHART. (No. 635.)

The eighth assignment is well taken. The negligence, and that, therefore, the error in instruction complained of was erroneous, but, inasmuch as the plaintiff C. C. Richart has entered a remittitur of the judgment rendered for him, the error does not authorize a reversal of the judgment rendered for the plaintiff C. G. Richart. At the request of the plaintiff the court gave to the jury the following instruction: "That if the tracks of the defendant, at the corner of Fifth and Washington streets, were in a bad and dangerous condition to persons passing over the same, and you believe that complaint of the dangerous condition of said tracks, if such was the case, was made to the defendant, or any of its authorized agents, and if said defendant, or its authorized agents, promised or agreed to repair said tracks, and if you further believe that such promise or agreement, if any, was communicated to C. C. Richart by some person authorized to do 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 of reasonable care of the defendant, as in the court's charge defined, then you will find for plaintiffs." This charge is assigned as error. The objection that the issue as submitted to the jury was not authorized, for the reason that there was no averment in the petition to allow the admission of the evidence upon which the charge is based, is not sound. No averment, such as is contended for by the appellant, was required to authorize evidence by the plaintiffs of a promise by the manager of the railway to the chief of the fire department that the condition of the track at the intersection of Washington and Fifth streets should be changed, and the track repaired, and that such promise was communicated by the chief of the fire department to the plaintiff C. C. Richart. But the charge is objectionable in several respects, but in none which would authorize a reversal of the judgment in favor of plaintiff C. C. Richart. In our judgment, the evidence does not warrant an issue submitted to the jury as to whether or not the plaintiff C. G. Richart was guilty of contributory negligence; and the father's negligence, if he was guilty of any, cannot be imputed to the son. The father was neither the servant nor the agent of the son in carrying him upon the hose

(Court of Civil Appeals of Texas. Sept. 27, 1894.)

PERSONAL INJURIES-DAMAGES PLEADING AND
PROOF ACTION AGAINST STREET RAILWAY.

1. Expenses for medical attendance and nursing cannot be recovered unless specially pleaded.

2. A city street railway is liable for injuries caused by the unsafe condition of its tracks, though they were constructed under the supervision of the city engineer.

3. The death of a person may be proven by general reputation in the community in which he lived.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by C. C. Richart against the Houston City Street-Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Jones & Garnett, for appellant. son, Campbell & Sears, for appellee.

Hutcho

PLEASANTS, J. This is a companion case to cause No. 636 (Railway Co. v. Richart, 27 S. W. 918), this day decided by this court. The facts are nearly the same in each case, and many of the assignments are the same; and we shall not, therefore, discuss

in this opinion such assignments as are common to the two cases, and which are discussed in the opinion delivered upon the decision of said cause No. 636; nor will we comment upon the facts of this case further than may be necessary for the elucidation of the law questions presented by the assignments of error for our determination, since the judgment appealed from must be reversed, and the cause remanded for a new trial.

The first assignment is as follows: "The court erred in allowing the witness John Charlton, over the objection of the defendant, to give evidence on the trial as to what the testimony of Dr. Duffau, alleged to be dead, was in regard to the plaintiff's injuries, and the extent of the same, on a former trial of this cause, because there was no sufficient evidence to show that Dr. Duffau was dead, and no evidence suflicient to prove his death, and because there was better evidence of the alleged death of Dr. Duffau than that given on the trial, all of which is shown by defendant's bill of exceptions No. 1, on file in this cause." There was no error committed in the admission of this evidence. The objection here made to the evidence was not made upon the trial when the testimony was offered; but, be that as it may, we think the testimony of each of the witnesses, Crank and the plaintiff, was competent to prove the death of Dr. Duffau. Death is generally a matter of inference from facts proved. General reputation in the community is sufficient proof. Vide 1 Whart. Ev. § 223.

There was no error in the admission of the 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 railway. Knowledge on the part of defendant of the condition of its track was charged in the petition.

The third assignment of error is discussed, and is decided against appellant, in the opinion delivered upon the decision of the companion case to this (No. 636).

The fourth assignment is too general, and will not be considered.

The court gave the following charge: "The court erred in charging the jury that, if they found for the plaintiff, they would consider 'the pain and suffering, if any, loss of time and lessened capacity to earn money at his usual vocation, if any, and the expense incurred reasonably and necessarily for medical attention and nursing as a result of said injury, if any, for which defendant is liable.' This charge was and is erroneous, and to defendant's prejudice, and should not have been given, because there was no allegation in plaintiff's petition, or any other pleadings of the plaintiff in the case, that the plaintiff incurred any expense for medical attention or nursing as a result of the injuries complained of by the plaintiff in this cause, and there was no prayer in plaintiff's petition to recover any such expenses, and because there was

no evidence on the trial of any such expenses incurred by the plaintiff as a result of the injuries complained of in plaintiff's petition." This instruction is assigned as error, and we are of the opinion that the assignment must be sustained, and that this error in the charge necessitates a reversal of the judgment. The charge submits an issue to the jury warranted by neither the pleadings nor the evidence, and we cannot say that the jury were not influenced in their finding by the instruction.

The sixth assignment of error impugns the correctness of the following instruction given the jury: "While the ordinance of the city of Houston makes it the duty of the defendant to construct and build its railways on the streets of the city under the direction and supervision of the city engineer, yet whether the defendant did construct its tracks on Fifth and Washington streets under the direction and supervision of said engineer is not a matter of inquiry in this case; and you will not consider same as any reason for relieving the defendant company, if you believe defendant's tracks at said place were not in reasonably safe condition; that is, if the defendant did not use reasonable care in maintaining or building same, if such want of care is believed by you to be the cause of the accident." There is no error in this charge.

We deem it unnecessary to notice the remaining assignments of error. For the error indicated, the judgment of the lower court is reversed, and the cause remanded for another trial. Reversed and remanded.

RICE et al. v. MEXICAN NAT. R. CO. (Court of Civil Appeals of Texas. Sept. 27, 1894.)

INJURIES TO WIFE-RIGHT TO SUE THEREFOR

LIMITATIONS-COVERTURE.

1. The cause of action for personal injuries to the wife accrues to the community estate represented by the husband, and in the absence of a showing of exceptional facts entitling the wife to relief he alone can sue.

2. The refusal of a husband to bring an ac tion for injuries to the wife does not entitle the wife to sue alone.

3. The coverture of the wife does not prevent the running of the statute of limitations as against a right of action for personal injuries to her, since the husband is the person authorized to sue therefor.

Appeal from district court, Nueces county; J. G. Russell, Judge.

Action by Mrs. A. E. Rice and husband against the Mexican National Railroad Company for personal injuries. Judgment for defendant, and plaintiffs appeal. Affirmed.

G. R. Scott & Bro., for appellants. Dodd & Mullally, for appellee.

WILLIAMS, J. According to the petition. the personal injuries for which redress was sought were inflicted upon Mrs. Rice more than a year before she instituted suit. She

was, when hurt, and still is, a married woman, and sued originally without joining her husband as plaintiff, alleging simply that he had refused to sue. A general demurrer and special exceptions, based on the statute of limitations and upon the fact that the suit was improperly brought by the wife alone, were sustained in the court below. Plaintiff thereupon, joined by her husband, filed a second amended original petition as a substitute for the former one, from which the allegation that the husband had refused to bring the suit is omitted, and the fact is alleged instead that he had employed counsel to bring suit immediately after the injuries were inflicted, and that both he and his wife believed this had been done until this suit was brought, and after the year had expired. Special exceptions, which raised the question of limitation, and the original nonjoinder of the husband, were sustained, and, plaintiffs declining to amend, the suit was dismissed.

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, under the law, is represented by the husband. In him the right to sue is vested, and by him it must be asserted, unless exceptional facts are alleged, in which the wife's rights and necessities require that she should receive the aid of the court. Railway Co. v. Burnett, 61 Tex. 638; Ezell v. Dodson, 60 Tex. 331. In the case last cited the law on the subject is so fully stated that reference need only be made to it to show that the wife has no right to sue upon a cause of action which has accrued to the community estate simply because the husband refuses to sue. Additional facts, which need not be here mentioned, must be shown to entitle her to a standing in the court. In the case of Nickerson v. Nickerson, 65 Tex. 281, the cause of action did not, under the facts there existing, accrue to the community estate, but to the wife, because the husband was the wrongdoer. Hence it was held that the wife could maintain the action. The passage in the opinion in Railway Co. v. Gwaltney, 2 Willson, Civ. Cas. Ct. App. § 685, on the subject of limitation, was an obiter dictum. The suit there to recover damages for injuries to the wife's person was brought by the husband in due time, and no question of limitation properly arose. In Carter v. Conner, 60 Tex. 52, the wife was living apart from the husband, pending suit by her for divorce, based upon sufficient grounds, which were afterwards sustained, when creditors of her husband took from her possession exempt property, to which, under an order of the court in the divorce suit, she was entitled. The cause of action accrued to her, and not to the community, and her coverture was held to prevent the statute from barring it. These are the authorities relied on by appellant which are most nearly in point,

but none of them sustain the proposition that the wife, under the facts alleged, could sue alone on this cause of action. That point, however, is only incidental to the question of limitation. The husband, by the amended petition, joined in the suit, and it should have been entertained, upon proper terms, unless the action was barred. But from what has been said it follows that the suit was brought too late. The coverture of the wife did not prevent the statute from running. Rev. St. art. 3222, provides: "If any person entitled to bring an action ⚫ be, at the time the cause of action accrues, • a married woman, * the time of such disability shall not be deemed a portion of the time limited," etc. In this case it was the husband, and not the wife, who was "entitled to bring the action" when the cause of action accrued, and hence her coverture did not impede the running of the statute. The ruling of the court below was correct, and is affirmed.

SANCHEZ v. SAN ANTONIO & A. P. R. CO. (Court of Civil Appeals of Texas. Sept. 27, 1894.)

INJURIES TO PASSENGER-CONTRIBUTORY NEGLIGENCE.

Where plaintiff left the car in which he had been riding, and walked on defendant's railroad track, without looking for another train that he knew was then due, he cannot recover for injuries received by such train striking him, if the traininen could not, with the exercise of care, have avoided the accident after seeing plaintiff's peril, though the relation of carrier and passenger yet existed, and plaintiff was prevented from hearing the train by the noise of an engine standing near.

Appeal from district court, Nueces county; J. G. Russell, Judge.

Action for personal injuries by Macario Sanchez against the San Antonio & Aransas Pass Railroad Company. Defendant had a judgment, and plaintiff appeals. Affirmed.

G. R. Scott & Bro., for appellant. R. W. Stayton, for appellee.

WILLIAMS, J. On a former appeal of this case a judgment of the district court sustaining exceptions to the petition and dismissing the cause was reversed by this court. 3 Tex. Civ. App. 89, 22 S. W. 242. There has been a trial before a jury, resulting in a judgment for defendant, and the plaintiff again appeals.

Plaintiff was a passenger on defendant's train from Corpus Christi to Gregory, at which place is the junction between the two branches of the road, one of which goes to Corpus Christi and the other to Rockport. The train on which plaintiff arrived at Gregory stood on the main track, while that from Rockport entered the depot grounds over a side track, which was between the main track and the station house. Appellant, alighting from the car before the latter train

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