Ferrell was not guilty of contributory negligence, as a matter of law, and holding that whether or not he was guilty of contributory negligence under the evidence was a question of fact for the jury to determine. Richards testified: "I was going down Park street and came to these wagons, about the middle of the distance between the two streets." [1] In the original opinion written by Justice KING, he says that a street railway company does not have the exclusive and paramount use of its track in city streets, but has reciprocal rights with that of the public. This statement in our judgment, is, to say the least, an inaccurate expression of the relationship between street railway cars and other users of the street. Booth on Street Railways, § 304, p. 490, states the rule as fol lows: "As already stated, as a general rule, especially between street crossings, cars have a right of way superior to that of other vehicles and pedestrians, this preferential right to be exercised in a reasonable and prudent manner. But this rule does not apply to the crossing of tracks at street intersections. There the car has a right to cross and must cross the street; and vehicles and foot passengers have a right to cross and must cross the railway track. Neither has a superior right to the other. The right of each must be exercised with due regard to the right of the other, and in such a careful manner as not unreasonably to abridge or interfere with the right of the other. This equality of right, however, does not absolve one who is about to cross the tracks from the duty of taking proper precautions to avoid accidents." "We have not been able to find any case reported in this state where this identical question has been passed on as applied to the operation of street railways; but, upon principle, we think that, by analogy, that class of cases that lays down the rule upon this question as to injuries sustained by a person when upon a railway track which is operated by steam is applicable. As great a degree of care and vigilance by one entering upon or crossing the tracks of a city, would not in all cases be required as of a street railway, in operation upon a street in the case of one entering upon an ordinary railway operated by steam; and the facts connected with his entering upon the tracks of a street railway may not subject him to the charge of contributory negligence when a like state of facts might be evidence of his want of care in going upon the tracks of a railway operated by stances, could assume that, owing to the consteam; for a pedestrian, under such circumtinuous use of the street by the public, those operating the street cars would exercise much vigilance to prevent collisions, and could consider that the readiness with which such cars can be controlled and stopped would justify him in taking the chances of safely crossing over the track, when a similar effort to cross the tracks of a railway operated by steam might be regarded as negligence. Lynam v. Railway Co., 114 Mass. 87. "What is required in this, as in other cases of this class, is the exercise of ordinary care; and, when it is once ascertained that one entering upon the track of a street railway is lacking in caution and diligence, he should be held to the same responsibility as exists in other cases where the plaintiff may be guilty of contributory negligence. The principle of law which is applicable to a case where one, by his negligence, places himself in a position of peril upon a railway track applies to a case like this. has contributed to his injury, and, such being In either case it is his negligent conduct that the case, he is not permitted to recover, unless his perilous situation is discovered in time to prevent running him down. The fact that the plaintiff was privileged to use the street, and that, in the exercise of this right, he was not required to observe the same degree of care and watchfulness that would be required in a case where he was entering upon the track of a railway operated by steam, would not lessen the degree of responsibility that attaches to his negconduct in exposing himself to danger, Again (section 317, p. 518) this author says: "It is the duty of other travelers and of those in charge of street cars to be on the lookout for each other, the degree of caution required of the former being increased by the fact that, except at street crossings, the latter have the right of way. Although the company is bound to exercise care and diligence to avoid collisions and accidents, this does not relieve all other persons who are using the streets from the duty of using proper care and watchfulness to avoid injury. The degree of care and prudence requir-ligent ed of one traveling upon the street where a if it is clear that he was guilty of such conduct. street railway has been rightfully laid down is In either case it is his negligent conduct that greater than that demanded of him by the law exposes him to peril." Citizens' Ry. Co. v. upon other streets, in proportion as the risks Holmes, 19 Tex. Civ. App. 266, 46 S. W. 116. are increased by the operation of the railway; and, as the company is entitled to the unrestricted use of its rails for the passage of its cars within the limit of speed which the law allows, the driver of any other vehicle, being unnecessarily upon the track, is bound to exercise greater care than when elsewhere in the street, to see that the approaching car is not impeded. Ordinarily error of judgment or inattention to one's surroundings, if it directly contributed to an injury, will bar a recovery." In the case of Austin Dam & S. Ry. Co. v. Goldstein, 18 Tex. Civ. App. 704, 45 S. W. 600, it is stated: [2, 3] We are of the opinion that the evidence, as above set out, was such as permits only one inference to be drawn therefrom by ordinary minds. In the case of Butler v. Rockland, T. & C. St. Ry. Co., 99 Me. 157, 58 Atl. 778, 105 Am. St. Rep. 267, which has been cited by the courts of this state with approval, there is a statement of the law of what care is required of one going on a street railway track, this statement of the law being, as we be lieve, in accord with sound reason, and in ac cord with the holding of our own Supreme Court. * * "While the rule that a traveler must look and listen before passing over a railroad crossing has been held not applicable to street railroads, * still it is necessary that a traveler approaching a street railroad crossing is bound to exercise some care to avoid danger of collision. He must exercise ordinary care, the care of an ordinarily prudent man, in view of all the existing conditions. He must take into account the probability of cars being near at the time, and the opportunities for observing them. He must have regard to his own speed, and must take some notice of the apparent speed of the approaching car, if seen. It is not necessarily negligence for a traveler to cross a track in front of an approaching car, even if he had misjudged its distance and speed. * Whether a traveler in such a case is negligent depends upon the facts in the case. But he must exercise due care and judgment about it. He cannot sit under cover, and not look, or, if he looks, not see, a car plainly before his eyes, and have no care whatever, and then say he has And, in any event, the defendant had the right to run cars when he chose, and it was the duty of the plaintiff to exercise some care to look out for them. He could not be entirely inattentive." fulfilled the measure of the law. * * The courts have held that the occupant of a car, who is not the driver of it, is under the obligation of exercising some care, and a failure to do so would be contributory negligence. In the case of Lyons v. Phillips, 196 S. W. 995, which is a decision by the Texarkana Court of Civil Appeals, a suit by the occupant of a car other than the driver, which was struck at a railroad crossing for damages, wherein there was a recovery against the railway company and appeal by it, in reversing it, the court used the following language: "But John F. Collins was the owner of and was operating the automobile, and Phillips, the deceased, was riding merely as the guest of Collins. And the negligence of John F. Collins may not be imputed, as a matter of law, to the deceased, Phillips. And the want of ordinary care on the part of the deceased. riding with another as his mere guest, would be measured by whether he failed in his duty to keep a lookout and to warn his companion. operating the automobile, when he discovered the approach of the train. * no direct evidence indicating the precautions taken by the deceased. The circumstances arising out of the physical facts immediately preceding the collision alone speak upon the question of contributory negligence of the deceased. Those circumstances do not speak with suffiRail-tion as a matter of law." cient weight to conclusively determine the ques As set out in the case of Edwards v. way, 100 Tex. 23, 93 S. W. 106, our Supreme Court has said that: Under the facts of the instant case, the plaintiff made no effort to ascertain the situation, and states that, had he used any effort at all, either by looking or listening or by the use of any other precaution, he would not have been injured; that he relied upon other parties strictly, although he made no conscious effort to do that. In our judgment, it is always a question of law for the court to say whether or not any care is required under a given state of facts. The young man who was injured in this case had not become a passenger in the automobile. He had simply gotten upon the running board. Had he been a passenger in the car, an occupant of the car, he would not have been injured, and we understand the law to be that, even though one is an occupant of a car driven by another, yet he must exercise due care for his own safety. The plaintiff, according to his own statement, said: "Had I done anything to see if that car was coming, I could have gotten out of the way." There is In the case of Lyon v. Phillips, supra, the holding is straight out on the proposition that, while the negligence of the driver of the car would not be imputed to the guest in the car, but the contributory negligence would be measured by whether he failed in his duty to keep a lookout and to warn his companion operating the automobile. In the Phillips Case there was no direct evidence. If the deceased had not been killed, but had lived and testified and stated as the plaintiff in the present case did, that he did not look, that he did not listen, that he did not have the situation in mind, and that "had I done anything to see if that car was coming I could have gotten away," the court would have promptly held that he was guilty of contributory negligence as a matter of law. If a mere guest in a car approaching a railroad track is required to exercise some care in knowing whether or not the track could be approached and crossed in safety. it seems to our mind to follow that one whe jumps off of a moving wagon on a paved street where there are two street car tracks, even though it be at the invitation of a driver of an automobile, is bound to exercise some care to see whether or not he can go onto a street car track with safety to himself. The Supreme Court of this state, in the case of Sabine & East Texas Ry. Co. v. Dean, 76 Tex. 73, 13 S. W. 45, speaks as follows: "Gordon, a witness for plaintiffs, testified: 'I saw Mr. Dean when he was struck. He came out of the file room; just as he got on the rail In the the cars struck him. Two cars passed over him. I have heard it had he listened; that had he Mr. Dean came out of the file room, going to- looked he would have been aware of the apward the mill across the track, when the train proach of the car; that had he looked and struck him. Mr. Dean's business called him seen it he would not have gotten on; that back and forward across the track; other men had he done anything to see if that car was cross it also; they have to use it to get to the mill. It is commonly used by the men passing coming he could have gotten away. backward and forward. Mr. Dean was coming present case plaintiff, while relying upon othright straight across the track. He could have ers, did not use any sense of his own to know seen the train if he had looked up the track of the signals, or to know of the approach after he got out of the house. The cars struck of the train, either by looking or listening, him just as he got to the fireman's rail—that is, but relied upon others wholly, without any the rail nearest the file room; the cars struck conscious effort on his part to protect him him just as he got his foot across the rail. He from injury. Plaintiff's own statement is to was struck by the body of the car on his shoul- the effect that he made no conscious effort to der. I don't know whether or not he had both feet over the rail. The cars were very close to him when he got on the track. He could have seen the cars from the file room door if he had looked up. He was not looking that way. He was looking toward the mill.' "This evidence is not contradicted. But one conclusion can be drawn from it, and that is that when there was nothing to prevent his seeing his danger, he heedlessly stepped upon the track at the very moment of the collision. "It may be conceded that the manner of propelling the cars was, under the circumstances, an act of negligence upon the part of the defendant, and yet it must be held that the deceased exercised no care, and that his own want of it was the immediate cause of his injury. "There is nothing in the record to indicate that after it became evident that he was going to place himself in a position of danger, it would have been possible for the defendant, by the use of any degree of skill or watchfulness, or by the use of any known appliances, to have stopped the cars in time to have saved him. "The fact that on account of the noise of the mill he could not hear the approach of the cars cannot be held to excuse him from the duty of using his eyes to see them. If anything, it emphasized that duty. "We think the defense of contributory negligence was sustained by the evidence without there being anything to the contrary." This opinion was followed in the case of Railway Co. v. Trochta, 181 S. W. 764, and other cases in this state. The holding is to the same effect in the case of St. Louis, Brownsville & Mexican Ry. Co. v. Paine, 188 S. W. 1034. Measuring the case at bar by the Edwards Case, we find that the plaintiff in the present case knew as much as the plaintiff in the Edwards Case. Edwards admitted that before stepping on the track he neither looked nor listened for a train. Ferrell, in the present case, stated, "I didn't think about it (the street cars), and didn't look for it." In the Edwards Case, it seems that 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 looked. In the present case plaintiff testified that he knew there was a street car track there; that he guessed he knew cars passed both ways; that he ran out on the street car track and stepped on the car; that he could determine these facts. He did not look to didn't think about it, and didn't look for it.” [4] In the opinion of Justice KING, the following language is used: "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, it makes his action negligence per se, and therefore guilty of contributory negligence as a matter of law." As applying to the facts in this case, there is nothing, in our judgment, to justify a statement to the effect that there was a mistake of judgment on the part of Leroy Ferrell, because he exercised no judgment. He simply acted upon an impulse without using his judgment in the slightest degree, or doing anything to ascertain the situation. Again, the writer of that opinion used the following language: "The exercise of a person's judgment, although in error, does not make his action negligence as a matter of law." This, in our judgment, is beyond the facts. There is nothing in the present case that indicates that the injured party exercised any judgment or any faculty of his to determine the situation prior to the time of making an effort to get upon the automobile. Therefore, it is the opinion of the court that the rehearing should be granted, and that the judgment of the trial court be in all things affirmed. It is so ordered. HIGHTOWER, C. J., did not sit in this case. KING, J. (dissenting). It is my opinion that this court was in error in granting the motion for rehearing in this cause, and in affirming the judgment of the lower court, and I therefore dissent from its action in so doing. My original opinion filed in this case | 8. LIBEL AND SLANDER 123(1) presents my views as to the disposition of Where effort is made to impeach witness by evidence of declarations inconsistent with his testimony tending to prove testimony a fabrication by reason of some influence existing at time of trial, evidence of declarations of witness corroborative of testimony made at a time when no such influence existed is admissible. 5. WITNESSES 321 - CREDIBILITY - DEP QUESTION-Making of REMARKS. The test of principal's liability for agent's wrongful act is, not whether act was authorized or done in violation of principal's orders, but whether it was done while engaged in principal's business and within apparent scope of authority. 10. LIBEL AND SLANDER ~6(1)—“LIBELOUS PER SE." Defamatory words to be "libelous per se" must be of such a nature that the court can presume as a matter of law that they will tend to disgrace and degrade the party, or hold him up to public hatred, contempt, or ridicule, or cause him to be shunned and avoided. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Libel.] 11. LIBEL AND SLANDER 86(2)—ACTION— PLEADING. Where alleged slanderous words are susceptible of an innocent as well as a defamatory meaning, plaintiff should allege use of words in a defamatory sense, and also that words conveyed defamatory meaning to hearers. 12. LIBEL AND SLANDER ~6(2), 9(1)—DEFAMATORY WORDS. Where alleged slanderous words charged plaintiff, who was holder of blank policy, with issuing unauthorized certificates, plaintiff was required to prove special damages; such words not being defamatory as a matter of law, as charging an act involving moral turpitude, reflecting on business integrity, or calculated to impair business standing. In action for slander and for wrongful interference in contractual relations, resulting in tie-up of plaintiff's shipment of cotton, damages cannot be recovered for loss of profits Party offering depositions in evidence vouch- business during period of tie-up, instead of deplaintiff might have made by engaging in other es for credibility of the witness. OSITIONS. voting his time to effort to settle shipment controversy; such damages being too remote and 6. WITNESSES ~~~396(1) DEPOSITIONS both first and second deposition of same wit- 14. LIBEL AND SLANDER 119 SUFFERING. ness, could not explain the conflict between testimony contained in first with that contained in second by evidence as to prior unsworn state-recovered for mental distress, not the direct rements of the witness. sult and proximate effect upon his mind and feelings of alleged slanderous statement. 7. APPEAL AND ERROR 1050(1) HARMLESS ERROR-ADMISSION OF EVIDENCE. Where evidence as to whether defendant's agent made statements defamatory to plaintiff was sharply conflicting, and plaintiff's witness' testimony as to statements was inconsistent with testimony given in former deposition, the admission of evidence of declarations of such witness to corroborate his testimony that statements were made was reversible error. In action against insurance company for resulting tie-up of plaintiff's shipment because of alleged slanderous statements, evidence held to warrant finding that defendant's agent did not intend to state, and financial backer did not understand, that no reinsurance had been obtained. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 16. LIBEL AND SLANDER TION OF LANGUAGE. 19-CONSTRUC-I certificates so issued, operative for the protection of that particular cotton. Alleged defamatory language must be con strued as a whole. 2. That on December 28, 1914, plaintiff issued certificates of the kind and character, 17. PRINCIPAL AND AGENT 124(1) AU- aforesaid, insuring 11,000 bales of cotton, THORITY-JURY QUESTIONS. In action for slander and for wrongful interference with contractual relations, evidence held sufficient for submission to jury of whether alleged agent who made defamatory statement had authority from defendant to make statement. 18. LIBEL AND SLANDER 125 -SPECIAL ISSUE. ACTION during a voyage on the ship Dacia from Galveston, Tex., to Bremen, Germany, which action on the part of plaintiff was in pursuance of his said contract with defendant. 3. That at about the time said cotton began to be loaded on the steamship Dacia at Galveston, about January 6, 1915, defendant, through its managing officers, particularly its In action for slander resulting in tie-up of president, J. B. Branch, its attorneys, Harplaintiff's shipment, because of alleged state-rington, Bigham & Englar, and its agent, ments by defendant insurance company that cer- Edwin G. Seibels, deliberately and malicioustificates covering shipment were unauthorized ly began and continued a course of conduct and insurance had not been reinsured, evidence calculated and intended to thwart plaintiff held to justify submission of special issue of in his efforts to make said shipment, and to whether financial backer refused to accept cer- enable defendant to evade its obligation untificates regardless of alleged statements. der its said contract of insurance and force a cancellation of said policy. It was specially alleged that the officers and agents 19. EVIDENCE 271(13), 318(2)-HEARSAYSELF-SERVING DECLARATION. In action for slander, telegram from plain- aforementioned falsely, maliciously, and tiff's agent to plaintiff, stating that third party slanderously represented to Max May, vice had notified agent that defendant had made al-president of the Guaranty Trust Company of leged defamatory remarks, was inadmissible, New York, that the certificates issued by being hearsay, self-serving, and not binding upon plaintiff, covering the 11,000 bales of cotton, were unauthorized by defendant, and that defendant had no reinsurance on this risk, and defendant. Appeal from District Court, Tarrant Coun- that plaintiff had improperly issued certifity; Bruce Young, Judge. Action by Tom B. Owens against the Providence Washington Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for appellant. R. M. Rowland, Lassiter & Harrison, and McLean, Scott & McLean, all of Ft. Worth, for appellee. BUCK, J. Tom B. Owens sued the Providence-Washington Insurance Company, alleging in substance as follows: 1. That plaintiff was at the time of the transactions herein mentioned engaged in the business of buying, selling, and exporting cotton under the trade-name of Tom B Owens & Co. On September 1, 1914, defendant entered into a contract with plaintiff, by the terms of which it insured him against loss at sea of any and all cotton that plaintiff might ship, and as a part of said contract defendant delivered to plaintiff certain certificates in writing, to be used by him in the course of his business of exporting cotton. That under said contract plaintiff might, whenever he was about to make a shipment of cotton by sea, issue said certificates covering said cotton, using for that purpose the forms placed in his hands, as aforesaid, and might thus render said general contract of insurance and special contracts, evidenced by the cates against this shipment in so large an amount as to endanger the solvency of the defendant company and the interests of the Guaranty Trust Company, which latter company had agreed with plaintiff to finance the Dacia shipment, and which then held the aforesaid certificates of marine insurance covering said cotton. It was further alleged that exporters of cotton were required, by the necessities of their business, to have shipments like this financed by bankers, which custom was well known to defendant. That plaintiff had arranged with the Guaranty Trust Company to finance said shipment, including the advancing or guaranteeing of the freight charges due the owner of the ship and the premiums for marine insurance. That on this shipment the freight charges, alone, amounted to $175,000. That on January 21, 1915, said shipment was ready to depart from Galveston, and the certificates were in the hands of the Guaranty Trust Company, and that by reason of the false and slanderous statements above mentioned made to Max May, acting for the Guaranty Trust Company, said trust company was caused to decline to advance the freight charges or to permit the Dacia to sail until the controversy was straightened out to its satisfaction. That about this time the plaintiff agreed and decided to change the destination of the voyage from Bremen, Germany, to Rotterdam, Holland, and so notified all parties interested, and sought to change said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |