HAYS ข. GAINESVILLE Street R. Co. (Texas Supreme Court, May 1, 1888.) Street Railway- Personal Injuries - Negligence - Instruction. - In an action against a street railway company to recover damages for personal injuries sustained by plaintiff through the defendant's negligence, an instruction that the plaintiff is entitled to recover if he was injured through the carelessness of defendant's car-driver, or by the wilful or intentional act of such driver, is erroneous, as indicating that the term "negligence" is to be considered as synonymous with an intention on the driver's part to inflict an injury on plaintiff. Same Pleading "Gross Negligence." An averment in a complaint that the plaintiff was injured through defendant's "gross negligence," will not limit plaintiff's right of recovery (if otherwise entitled) to an injury inflicted by the wilful or intentional act of another; but he may recover for any lesser degree of negligence. Same Slight Negligence - Instruction. An instruction which will preclude a plaintiff from recovery for personal injuries unless he exercised prudence and foresight to avoid injury, is erroneous, there being no rule of law which requires him to use more than ordinary caution to shield himself from the consequences of contributory negligence. Same-Contributory Negligence-Right to Recover.-A plaintiff may recover for personal injuries, even though he has been guilty of contributory negligence, if defendant could have avoided injuring him, after discovering his peril, by the use of such means as a prudent and careful man would have employed under the same circumstances; defendant's want of ordinary care being the proximate cause in such circumstances. Same-Unskilful Employee. In an action against a street railway company for damages for personal injuries sustained through the negligence of a driver in its employ, an instruction that if, by the failure of defendant to employ skilful and prudent drivers, any one is injured, the defendant is liable, but that the fact that a driver might have been careless or imprudent at other times would not render the company liable, unless, on the occasion of the injury sued for, such driver was careless, reckless, or imprudent, is argumentative and improper. Same Personal Injuries-Evidence Competency. In an action by a boy against a street railway company for damages for personal injuries, evidence that other boys than plaintiff had been in the habit of jumping on the cars and rocking, and scaring the mules, is inadmissible. Same-Application of Brake-Evidence. In such action, if there is evidence before the jury tending to show that when the brakes are applied, a car-wheel will not revolve, but will slide along the ground, the boot worn by plaintiff at the time of the injury is admissible for the purpose of showing by the indentations upon it that the car-wheel ran over plaintiff's foot, and that the brake was not applied. APPEAL from Cook County District Court. Action by an infant, by his next friend, to recover damages for 34 A. & E. R. Cas. — 7. personal injuries. Appeal by plaintiff from verdict and judgment for defendant. The opinion states the case. E. A. Blanton and Hill & Hill for appellant. MALTBIE, J. -Reese A. Hays, the appellant, a boy eleven years old, was seriously injured by reason of the wheels of one of the cars of the Gainesville Street Railway running Facts. over his foot, under the following circumstances: Appellant, in company with a number of other boys, was returning from school along North Dixon Street, in the city of Gainesville, over which appellee had constructed its street railway, and was engaged in operating its cars. Hays was in the street on the west side of appellee's track, going in the direction of his home, which was south-east of the track. At the same time, one of appellee's cars was approaching from the north, drawn by a mule, going in a slow trot. Hays and a boy named Purdy were playing; the former running along, and within a few feet of the street-car track, closely pursued by Purdy, who was about to overtake him, when Hays turned suddenly to the left, colliding with the mule drawing the car, striking the mule about the shoulders, causing him to shy, which caused Hays to fall. The mule moved on, drawing the car over Hays's foot and ankle, fracturing the bone, and causing much pain and suffering. It was shown that from the shoulders of the mule to the front wheel of the car is a distance of 11 or 12 feet; and there was evidence tending to show, that, by applying the brakes attached to this car, it could have been stopped within a space of 6 feet. There was also evidence tending to show that the driver was careless and incompetent, and that he struck the mule a sharp blow with his whip just as appellant fell to the ground, though all these facts were disputed. The ordinances of the city of Gainesville, under authority of which appellee's road was constructed, require that all drivers of street-cars shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or running towards it; and, on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible, and that each driver shall have a whistle, and, on the approach of danger to any person, animal, or vehicle, shall give an alarm. The collision occurred near the point where the appellant was in the habit of crossing the track in going to and returning from his home. He did not see or hear the car, though he could have done so, had he listened or looked. The reason that he did not see the mule in time to avoid the collision was, that he was looking back at his pursuer. The trial resulted in a verdict and judgment for the appellee. Alleged errors in the charge of the court and in admission and rejection of evidence are relied on for a reversal of the judgment. The controlling question in this, as in almost all other cases of personal injury, is as to which party is guilty of negligence contributing proximately to the injury. Negligence is a relative term; and its application depends on the situation of the parties, and the degree of care and vigilance which the circumstances usually impose. The degree relative term. is not the same in all cases, but may vary according Negligence a to the danger involved in the want of vigilance. Illustration. Cooley, Torts, 630. To illustrate, it would involve little or no want of care to cross a road or street on foot used exclusively for ordinary travel, without looking either way for persons on horseback or in vehicles, because usually there is but little danger in so doing; while it would be gross negligence to cross a railroad track over which many trains of cars are accustomed to pass every hour in the day, without using the utmost vigilance and circumspection. In determining whether it is an act of negligence to go upon a street-car track, the frequency of the passage of cars, their usual rate of speed, whether many people are accustomed to cross at that particular place, whether there is a duty imposed by law upon the drivers to keep a lookout and give warning of approaching danger, and the like circumstances, may be taken into consideration. In the present instance the ordinance under which appellee was incorporated made it the duty of the car-driver to keep a vigilant lookout for all persons approaching the track, and to stop the car on the first appearance of danger; and a failure to perform this duty would of itself be an act of negligence. But Instruction as the District Court, for the purposes of the trial, con- of defendant sidered the term "negligence," as applied to appellee, held erroneous. as synonymous with an intention on its part to inflict to negligence an injury on appellant. In the second paragraph of the charge the jury are told that if plaintiff was injured through the carelessness of the driver of defendant, or by the wilful or intentional act of such driver, as charged in plaintiff's petition, to find in his favor. The allegations on the subject, briefly stated, are to the effect that the injury complained of was inflicted through the negligence of defendant, and do not authorize the charge. And, again, after giving a detailed statement of the acts leading to the injury, the petition charges that it was inflicted through the gross negligence of defendant. The term "gross Same. Gross negligence" includes all lesser degrees of negli- negligence. gence; and a charge in a petition that an act was done through gross negligence would not limit the right of 4 Recovery notwithstanding contributory negligence. recovery, if otherwise entitled, to an injury inflicted by the wilful or intentional act of another. Negligence is of a negative character, and implies a want of care. In order for an act to be negligent, it is never necessary that it should be done through design, though it is said that an act may be so grossly negligent that it may be presumed to have been wilfully or intentionally done. The sixth paragraph of the charge is as follows: "Although you may believe from the evidence that the driver of said street-car was guilty of negligence which contributed to the injury in question, still, if you further find from the evidence that the plaintiff was also guilty of negli gence which directly contributed to the injury, then the plaintiff cannot recover in this suit, unless the jury further find from the evidence that the negligence of the driver of said street-car was malicious and wilful or wantonly reckless, showing an utter disregard for plaintiff, and that the negligence of plaintiff was but slight, as will hereinafter be explained toyou." In seventh paragraph of the charge the jury is again told, that, if plaintiff was guilty of contributory negligence, he can not recover, unless the injury was caused by the wilful, wanton, or malicious act of the driver. In eighth paragraph the court charges, "By the term 'slight negligence,' as used in sixth sec Same. Slight negligence. tion of this charge, is meant in the absence of that degree of care and vigilance which persons of extraordinary vigilance and foresight are accustomed to use under similar circumstances." The effect of these instructions was to preclude plaintiff from a recovery unless he exercised extraordinary prudence and foresight to avoid the injury. If the injury was the result of the negligence of appellee, there is no rule of law that requires that appellant should have used more than ordinary caution to shield himself from the consequences of the contributory negligence. We are also of the opinion that the proposition announced in paragraph 6 and repeated in paragraph 7 of the charge, to the effect, that, if plaintiff was guilty of contributory negligence, he cannot recover, unless the car-driver wilfully or intentionally inflicted. Same. Wilfully the injury upon him, should not have been given except upon the theory that the driver failed to discover plaintiff's peril in time to avoid injuring him by the use of such means as a prudent and careful man would have employed under the same circumstances; for, if the driver could have then avoided the injury after discovering plaintiff's peril, his want of ordinary care was the proximate cause of it, and defendant would be liable for damages. The reason why a person who is guilty of negligence contributing to his own injury cannot recover, is because the policy of the law will not ordi inflicting injury. narily permit one to recover who is himself at fault; but although the negligence of such person may contribute to his own injury, yet if the person inflicting it discovers the peril of the other in time, by the reasonable exercise of the means at hand, to have prevented the injury, the law considers the failure to use such means as the immediate cause, and will permit a recovery, notwithstanding the injured party was guilty of contributory negligence. Railway Co. v. Weisen, 65 Tex. 447. On account of the prominence given in the charge to the doctrine that appellant could not recover if guilty of contributory negligence, unless the injury was inflicted wilfully, wantonly, or maliciously, we do not think it likely that the jury understood paragraph 10 to be a qualification of the doctrine before announced and emphasized, though doubtless so intended by the court. We think that when it becomes necessary, in a charge to a jury, that a doctrine given should be limited or qualified, the qualification should follow the main proposition as nearly as convenient, in order to prevent any confusion in the mind of the jury. If, taking into consideration the age of appellant, and all of the other facts and circumstances of this case, he was guilty of contributory negligence in going on to appellee's track, and of this we express no opinion, we do not think appellee would be liable if the driver did not in fact discover appellant in time to have prevented him from being run over, and such failure was no more than ordinary negligence. In paragraph 13, the court, after charging that if by the failure of the street-car company to employ skilful and prudent drivers any one is injured, that the company Unskilful neous. liable, further charges that the fact that a driver employee. might have been at other times careless or imprudent Instruction would not render the company liable in this action, concerning, unless, on the occasion of the injury sued for, such held errodriver was careless, reckless, or imprudent. While the proposition embraced in this charge may be sound logic, still it is argumentative, and improper to be given in charge to a jury by a court. The evidence was conflicting as to whether the driver was negligent on this occasion; and his negligence on former occasions, if such was proven, was a circumstance to be considered by the jury with the other evidence in the case in determining whether he was negligent or not on the present occasion. Parties are, under the laws of this State, entitled to have juries consider all evidence submitted to them, without any suggestion or comments whatever from the court. The statute contemplates that such legal propositions, and such only, as are applicable to the facts of the case, should be submitted by the court to the jury in language and terms suited to |